Bartholomae's Estate, In re

• Decision Date: 06 May 1968
• Citation: 68 Cal.Rptr. 332,261 Cal.App.2d 839
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of the ESTATE of Charles A. BARTHOLOMAE, Deceased. Carmela M. BARTHOLOMAE et al., and Paul Caruso, Petitioners and Appellants, v. Cita ARENA, Objector and Respondent. Civ. 8958.

Page 332

68 Cal.Rptr. 332

261 Cal.App.2d 839

In the Matter of the ESTATE of Charles A. BARTHOLOMAE, Deceased.

Carmela M. BARTHOLOMAE et al., and Paul Caruso, Petitioners and Appellants, v. Cita ARENA, Objector and Respondent.

Civ. 8958.

Court of Appeal, Fourth District, Division 2, California.

May 6, 1968.

[261 Cal.App.2d 840] Paul Caruso and John C. Gregory, Beverly Hills, for petitioners and appellants.

Wright & Finley, by, Dudley K. Wright, Santa Ana, for objector and respondent.

OPINION

McGOLDRICK, ^* Associate Justice Pro Tem.

Petitioners appeal from the following orders of the superior court: (1) denial of their motion for a directed verdict, (2) granting respondent's motion for a general mistrial, and (3) order setting aside and declaring void the special verdicts of the jury.

These orders arise out of a contest of a will before probate. Charles A. Bartholomae died testate on November 22, 1964; he was a resident of Orange County. A petition for the probate of his last will and testament was filed on December 17, 1964 by Security First National Bank and Paul Caruso, coexecutors. The names of the devisees and legatees in the will are as follows: Carmela M. Bartholomae, the decedent's wife; Carlos Bartholomae, the decedent's son; and Cita Arena, the decedent's daughter of a former marriage.

Cita Arena was disinherited under the terms of the will, the testator leaving her the nominal sum of $1,00. Written objections to the will were filed by Cita Arena on January 28, 1965. The grounds of contest were: (1) improper execution, (2) fraud, (3) undue influence, and (4) insane delusions.

Midway through the trial respondent abandoned her claim that the will was improperly executed. The jury returned special verdicts that the will was not executed or published as the result of fraud or undue influence; no conclusion was reached by the jury on the issue of insane delusions. A judgment was not entered upon the verdicts. Respondent moved for a general mistrial and a vacation of the special verdicts on the grounds that the jury's findings were incomplete. The appellants moved for a directed verdict. On April 13, 1967, the court denied the motion for a directed verdict and granted the motion for a mistrial and set aside and declared void the special verdicts returned by the jury. As we stated at the outset, it is from the aforementioned orders that petitioners appeal.

It is respondent's contention that the orders are not appealable. It is our view that this position is correct for the following reasons. No appeal lies from a verdict in a will contest, nor from orders denying a new trial, a nonsuit, a directed verdict, and a judgment notwithstanding the verdict, these not being among the appealable orders mentioned in Probate Code, § 1240; Estate of Roberson, 114 Cal.App.2d 267, 268--269, 250 P.2d 179; Estate of Alegria, 87 Cal.App.2d 645, 659, 197 P.2d 571; and Witkin, California Procedure, Vol. 3, p. 2163. It also follows that an order vacating and setting aside a special verdict is equally nonappealable. (Probate Code, § 1240.)

The sole question that remains to be decided in this appeal is whether an order granting a general mistrial is an appealable order. The appellants devote a major part of their brief to the contention that an order granting a general mistrial is functionally identical to an order granting a new trial, under Code of Civil Procedure § 657, which is clearly an appealable order. (Code of Civil Procedure, § 963.) They further contend that since section 657, supra, specifically provides for a new or further trial on 'all or part of the issues' to require a new trial because of a failure of the jury to resolve all of the issues would clearly be contrary to the express...