Meyer's Estate, In re

• Decision Date: 04 March 1953
• Citation: 251 P.2d 430,116 Cal.App.2d 498
• Court: California Court of Appeals Court of Appeals
• Parties: In re MEYER'S ESTATE. Civ. 8178.

Page 430

251 P.2d 430

116 Cal.App.2d 498

In re MEYER'S ESTATE.

Civ. 8178.

District Court of Appeal, Third District, California.

March 4, 1953.

Hearing Denied April 30, 1953.

Lounibos & Lounibos, Petaluma, and Geary, Spridgen & Moskowitz, Santa Rosa, for appellants.

Sullivan, Roche, Johnson & Farraher, San Francisco, for respondent.

VAN DYKE, Presiding Justice.

The appeals herein were taken direct to this Court. Involving probate matters, they should have been taken direct to the Supreme Court. The error was not noticed by anyone concerned and the appeals were regularly briefed and argued without having been transferred to the Supreme Court. This Court rendered its decision and the error was then discovered. Our decision was therefore set aside and the appeals transferred to the Supreme Court. The Supreme Court returned the appeals to this Court for decision and they were again calendared for argument and submitted for decision. During the reargument the attention of this Court was called to a slight error in the statement of facts contained in our previous opinion which we have now corrected. We are satisfied with the decision heretofore rendered. With the correction in the statement of facts we adopt that opinion as the opinion of the Court. That opinion follows as so amended:

Alice Marie Meyer died in Sonoma County, and on September 18, 1947 a will was proposed for probate by the executor therein named. Albert C. Meyer, a son of deceased, contested. Judgment went against him and the document was thereupon admitted as the will of decedent. Thereafter Viola Marie Guay, a daughter of Albert C. Meyer, and also Viola Meyer, his wife, filed contests after probate. In the answers thereto filed by proponents of the will there was set up the special defense that each of said two contestants had actual notice of the pre-probate contest in time to have joined therein and that by Section 380 of the Probate Code they were not qualified to contest after probate. This special defense was first tried. It was determined against contestants, following which judgments were entered dismissing each contest. Viola Meyer Guay and Viola Meyer appeal.

It appears that both appellants knew of the pendency of the pre-probate contest shortly before November 3, 1947 when the trial of that contest was begun. On that, date and while appellants were in the court room attending the trial a previous will of decedent was introduced in evidence. On the following day Viola Marie Guay testified for Albert C. Meyer and on November 5th her mother also was a witness. There were a number of postponements and the trial was not completed until April 15, 1948, when the court ordered the cause submitted for decision. September 30, 1948 the court ordered judgment for the proponents of the will and on October 18th following admitted the will to probate. Within six months thereafter appellants filed their contests, alleging their interests to be that of legatees under the earlier will of decedent which had been introduced in evidence. Each appellant in the petition for revocation of probate alleged that she had no actual notice of the pre-probate will contest in time to have joined therein. The court found these allegations to be untrue and affirmatively found that each appellant had had such notice. More specifically the court found as to each appellant that early in the trial of said contest she had knowledge of the fact that there existed a will made by the decedent prior to her making her last will and that she was a beneficiary thereunder.

The question presented by these appeals is whether or not the findings as to notice of contest in time to joint are supported by the evidence. This calls for construction and application of Probate Code section 380, which provides: 'When a will has been admitted to probate, any interested person, other than a party to a contest before probate and other than a person who had actual notice of such previous contest in time to have jointed therein, may, * * * contest the same * * *.' We think the questioned findings are not supported.

The researches of attorneys for appellants and respondents and of this Court have not revealed any decision of the appellate courts of this State determining the specific issues raised by these appeals.

Prior to 1929 the Code of Civil Procedure relating to contests of wills provided as to post-probate contests that when a will had been admitted to probate any person interested might contest the same; in 1929 the legislature enacted the qualifying provisions recited above excluding from the interested persons who might contest after probate those who had been parties to preprobate contests or had had actual knowledge thereof in time to have joined therein. Under the older provisions it often happened that persons entitled to contest wills would, instead of joining in a pre-probate contest, withhold their contest until such contest had been determined, benefiting equally with ...