125 P. 750 | Cal. | 1912
This is an appeal from an order allowing respondent's testate, who was one of the nominated executors under the last will of Therese Berthol, deceased, expenses incurred by such executor in resisting a contest against the probate of her will. Said nominated executor — Joseph Morcel — was made the principal beneficiary under the will and petitioned for its probate, whereupon a contest against the probate was filed by the daughter and only next of kin of deceased on the ground of alleged undue influence exercised by said Morcel upon the deceased to procure the execution of the will in his favor. The verdict of the jury on the trial of the contest was in favor of the contestant on that ground and the judgment was entered denying probate of the will therefor. Thereafter the motion of said Morcel for a new trial being denied, he appealed therefrom and from the judgment.
Subsequently, an administratrix of the estate of said Therese Berthol having been appointed, said Morcel applied to the superior court for an allowance out of her estate of his expenses incurred as nominated executor in the contest of the will on the ground that these expenditures were made in good faith. Pending this application Morcel died and respondent, as executor of his will, thereafter proceeded in the matter. Appellant, while admitting the expenditures in the sum claimed — $849.90 — resisted the granting of the order, setting up in opposition thereto the verdict and subsisting judgment denying the probate of the will on the ground of undue influence of Morcel.
The court granted the application and made the order from which this appeal is taken. *345
The authority of the superior court sitting in probate to allow the costs and expenses of Morcel incurred in the contest of the will is based on section
In applying this principle, the merits of the application upon which an order purports to be based are not involved, hence, we make no discussion of them here. The court is simply without discretion to make any order until the final determination of the controversy. Under this view the superior court should have declined to entertain or act on the application in behalf of the nominated executor Morcel until the litigation was ended and the probate of the will finally allowed or rejected.
The order appealed from is reversed.
Henshaw, J., and Melvin, J., concurred. *346