Estate of Harootenian, In re
| Decision Date | 27 December 1951 |
| Citation | 238 P.2d 992,38 Cal.2d 242 |
| Parties | In re HAROOTENIAN'S ESTATE. S. F. 18116. |
| Court | California Supreme Court |
Philander Brooks Beadle and Morton L. Silvers, San Francisco, for intervener and appellant.
Leon A. Blum, San Francisco, David E. Peckinpah and L. N. Barber, Fresno, for respondents.
This is an appeal from a judgment of dismissal after an order sustaining a demurrer to and an order granting a motion to dismiss an amended complaint in intervention in a will contest. The judgment followed the final order in proceedings to revoke the probate of the will and is appealable. Sec. 1240, Prob.Code; sec. 963, Code Civ.Proc.; In re Estate of Baker, 170 Cal. 578, 583, 150 P. 989; In re Estate of Katz, 49 Cal.App.2d 82, 120 P.2d 896.
The record shows the following: Kazar Harootenian, a widower, died on March 3, 1947. A brief instrument designated as his last will and testament was dated February 27, 1947. It mentioned his four adult children George, Samuel, Agnes and Syble. They survived the decedent. The decedent bequeathed $1,500 to the son Samuel, all the rest of his estate to the daughter Agnes, and expressly disinherited George and Syble. George was named executor without bond and with power to dispose of the property without order of court. Some illegible marks or writing appeared with the decedent's name at the end of the will followed by an attestation clause subscribed by two witnesses.
On March 24, 1947, George filed a petition for probate of the will and for letters testamentary. On April 5th Samuel and Syble filed a contest resisting the probate of the will on the grounds that the instrument was not signed by the decedent but by another; that the formalities of execution were not complied with; that the decedent was then suffering from a broken spine, fractures and contusions, was confined to bed in a hospital, was physically helpless, feeble and infirm in mind and body, and was not of sound and disposing mind; that the attempted signing of the instrument was not his free and voluntary act but was procured by the undue influence of George and Agnes with tee intent to obtain the greater part of the estate for themselves. George and Agnes filed an answer to the contest admitting the alleged physical condition of the decedent but denied other allegations. On May 9, 1947, the contest was withdrawn and dismissed with prejudice pursuant to a stipulation and agreement among all the heirs. Thereby Samuel remitted the bequest which became a part of the residue. Agnes as residuary legatee agreed to the distribution to Samuel and Syble jointly of a one-half interest in the Harootenian ranch property in Fresno county, or one-half the proceeds of the sale thereof, and all agreed that the ranch be sold as soon as possible. Assets of the estate were listed as the ranch property, an apartment house in San Mateo County, a bank account of approximateluy $8,600, furniture and personal belongings. Property thereafter discovered was to be divided one-half jointly to Samuel and Syble, the other half to Agnes. The attorneys acting for Samuel and Syble were nominated to act for George in the sale of the ranch.
Upon the filing of the agreement and on May 12, 1947, the court admitted the will to probate and appointed George as executor. On November 19, 1947, George tendered his resignation dated in Nevada because of his removal to that state, and Agnes and Syble were appointed administratrices with the will annexed.
Within the six months limitation period of section 380 of the Probate Code, and on November 10, 1947, Haig Harootenian, minor son of George and Jean Harootenian, through the latter as his guardian ad litem, filed a contest of the will and a petition to revoke probate. The contestant alleged that he was a legatee under a prior valid will of the decedent, that the prior will was left in the possession and custody of George and Agnes who concealed the instrument, that the will admitted to probate was not the will of the decedent, was not executed in accordance with the required formalities, and was otherwise invalid on the same grounds as alleged in the contest of Samuel and Syble. George, Agnes, Samuel and Syble filed an answer containing denials of all allegations with the exception that they admitted the relationship and that at the time of the execution of the probated will the decedent was suffering from a broken spine, fractures and contusions and was confined to bed in a hospital.
On March 28, 1949, by leave of court, a complaint in intervention on the same grounds of contest was filed by Jean Harootenian as a judgment creditor of George. On April 5, 1949, the trial commenced. At the close of the contestant Haig's evidence as to the existence of the alleged prior concealed will, the proponents moved to dismiss on the ground that the evidence was insufficient to support Haig's claim of interest, namely, that there was a prior will in which he was named as legatee. The motion to dismiss Haig's contest was granted and the order thereon entered on April 16, 1949.
The amended complaint in intervention was filed by leave of court on August 8, 1949. Proponents filed a demurrer thereto and moved for dismissal on the grounds that there was not pending a contest in which the contestant could intervene and that the intervention was barred by the time limitation of section 380 of the Probate Code. As first indicated herein the trial court sustained the demurrer, granted the motion, and dismissed the proceedings in intervention.
The first question is whether the complaint in intervention was filed within the six months limitation of section 380 of the Probate Code. There is no question as to the timely filing of the contest initiated by Haig as an alleged legatee under a prior will. Nor may it be questioned that the allegations of Haig's petition showed him to be an interested person who may contest the validity of the will. The pleadings filed by him alleged a prima facie cause entitling him to contest the probated will as a legatee under a prior will. In re Estate of Land, 166 Cal. 538, 137 P. 246; In re Estate of Plaut, 27 Cal.2d 424, 164 P.2d 765, 162 A.L.R. 837. It is the settled law of this state that an interested person may intervene on the same grounds of contest at any time before the trial of a pending proceeding to revoke probate of the will initiated by another interested person. A will contest is in the nature of a proceeding in rem. It is immaterial that the intervention in a pending timely contest occurs after the lapse of the limited period, and the party's voluntary dismissal of the pending contest will not affect the right of the intervenor to a trial on the issues raised by him. Sec. 387, Code of Civil Procedure; sec. 1233, Probate Code; Voyce v. Superior Court, 20 Cal.2d 479, 127 P.2d 536; In re Estate of Butzow, 21 Cal.App.2d 96, 68 P.2d 374. The proponents do not seriously question these principles, but contend that they are inapplicable because on the trial Haig was unable to produce sufficient evidence of the existence of the alleged prior will and his contest was dismissed for failure to prove his interest. Thus the dismissal was not a voluntary dismissal by the party but was a dismissal by the court after trial on the merits of the preliminary issue. A voluntary dismissal by a party will not be permitted to defeat the statutory right of intervention by preventing trial on the grounds of the contest. But to give the claimed effect to the court's judgment of dismissal would likewise nullify the statutory right. That right inheres at any time before trial. An intervention which is timely and proper before trial cannot be defeated after trial by the finding on an issue which does not dispose of the merits of the issues tendered by the intervenor. If the contestant by a voluntary dismissal may not defeat the intervenor's right to a trial of the cause, there is likewise no reason why a dismissal entered by the court should have that adverse effect, and the proponents present no case in point so declaring. In the only case relied on the non-interest of the original contestant was shown on the face of the pleadings. See Russell v. Nelson, 317 Mo. 148, 295 S.W. 118. That case is distinguishable for that reason. The policy underlying the rule that the dismissal of the cause as to one party will not affect the rights of a party bot yet heard is that which permits all persons entitled to a hearing to have their day in court. True the court does not have jurisdiction to entertain a proceeding to revoke probate which is barred by the time limitation, and will be restrained from exercising jurisdiction in such a case. In re Estate of Smith, 214 Cal. 50, 3 P.2d 921; Scott v. Superior Court, 125 Cal.App. 513, 516, 14 P.2d 99. But that is not to say that when jurisdiction once attaches the court may be halted before all parties are heard because pursuant to its discretion relating to the order of proof, cf. In re Estate of Land, 166 Cal. 538, 540, 137 P. 246, the original contestant's evidence on the issue of his interest was deemed insufficient. The court did not lose jurisdiction of the entire contest and other parties by te dismissal of one, the original contestant, on a partial trial. The contest was unadjudicated at the time the intervention was filed and the court had jurisdiction to try all of the issues of the contest on behalf of all the parties before it, in whatever order of proof it might specify. That jurisdiction continued until the entire controversy was finally disposed of as to all of the contestants. It follows that the judgment of dismissal of the complaint in intervention is insupportable on the ground of the alleged bar of section 380 of the Probate Code.
The pleadings disclose that the plea of laches interposed by demurrer and motion is also unavailing. Nothing is thus shown by which the rights of the proponents could be prejudiced...
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