Ronayne's Estate, In re

• Decision Date: 27 April 1951
• Citation: 103 Cal.App.2d 852,230 P.2d 423
• Court: California Court of Appeals Court of Appeals
• Parties: In re RONAYNE'S ESTATE. ADAY et al. v. RONAYNE. Civ. 18315.

Page 423

230 P.2d 423

103 Cal.App.2d 852

In re RONAYNE'S ESTATE ADAY et al. v. RONAYNE.

Civ. 18315.

District Court of Appeal, Second District, Division 3, California.

April 27, 1951.

Rehearing Denied May 15, 1951.

Hearing Denied June 25, 1951.

Merrill L. Granger, Santa Monica, for appellant.

Gandy & Cockins, Santa Monica, for respondent.

VALLEE, Justice.

Appeal from a decree admitting a document to probate as a lost will after a contest.

Rose S. Cook Ronayne made a will on May 22, 1947. She died June 5, 1949, leaving surviving her husband George B. Ronayne whom she had married on November 7, 1940. The will named Norah Bangs Aday as executrix. The estimated value of the estate is $18,500.

Norah Bangs Aday petitioned for probate of the will of May 22, 1947, as a lost will, alleging that since the death of Mrs. Ronayne she had made, and caused to be made, 'diligent search and inquiry thereof and has not cannot ascertain the whereabouts thereof.' Before probate, George B. Ronayne filed a contest alleging that the will was revoked in its entirety during the lifetime of Mrs. Ronayne and that she died intestate. A citation issued directed to all the devisees, legatees, and heirs. It was served on all of them. None of them answered. Norah Bangs Aday, who was not a devisee, legatee, or heir, filed an answer.

The contest was tried by the court without a jury. At the close of respondent's evidence the court ordered that the default of the devisees, legatees, and heirs be entered. Contestant then moved to strike the answer of Norah Bangs Aday to the contest and all of the evidence introduced by her on the contest, on the ground that she was not a person interested and therefore not entitled to resist the contest. The motion was denied. Findings of fact were made and a decree entered admitting the will of May 22, 1947, to probate as a lost will. The surviving husband appeals.

Contestant's--appellant's--first specification of error is that the court erred in not striking respondent's answer to the contest and all of her evidence on the contest. He argues that she is not a devisee, legatee, or an heir; that therefore she is not an interested person and not entitled to resist the contest.

The question to be decided is whether a person named as executrix in a will, who is not a beneficiary or an heir of the testator, may resist a contest of the will before probate.

Probate Code section 370 provides that 'Any person interested' may contest a will before probate, and that upon the filing of written grounds of opposition to the probate 'a citation shall be issued directed to the heirs of the decedent and to all persons interested in the will, including minors and incompetents, whereever residing, directing them to plead to the contest within thirty days after service of the citation, which shall be made personally or by publication in the manner provided by law for the service of summons in civil actions.' It also provides that any person so served may demur to the contest and that 'If the demurrer is overruled, the petitioner and others interested, within ten days after the receipt of written notice thereof, may jointly or separately answer the contest.' (Italics added.)

Probate Code section 371 provides: 'On the trial [of a contest before probate], the contestant is plaintiff and the petitioner is defendant.'

In Re Estate of Hite, 155 Cal. 448, at page 455, 101 P. 448, at page 450, the court declared: 'The statute nowhere requires the executor named in the will, who has petitioned for its probate, to resist the claim of one filing written grounds of opposition thereto. He may or may not, at his option, become a party to the contest by demurring or answering the opposition. See section 1312, Code Civ.Proc. [now Prob.Code, § 371].' And in Re Estate of Higgins, 158 Cal. 355, 358, 111 P. 8, 9, 'While he [the executor] undoubtedly had the legal right under our statute to defend the will [before probate] in his capacity as executor (Code Civ.Proc. §§ 1299 [now Prob.Code, § 323], 1312 [now Prob.Code, § 371]; [In re] Estate of Hite, 155 Cal. 448, ), if such defense was soley for his own benefit as a devisee and legatee and could not operate beneficially as to any other person interested in the estate, he must bear the costs and charged of maintaining it.' See to the same effect In re Estate of Webster, 43 Cal.App.2d 6, 20, 110 P.2d 81, 111 P.2d 355; In re Estate of Pryor, 51 Cal.App.2d 735, 736, 125 P.2d 511.

We conclude that a person named as executor in a will, who is not a beneficiary or an heir of the testator, may resist a contest of the will before probate.

The second specification of error is that the findings are not supported by the evidence. The court found that Mrs. Ronayne executed her last will on May 22, 1947, that it was never revoked, and that it was in existence at the time of her death.

The rule is uniform that where it is shown that a will cannot be found after the death of the testator and when last seen or known to exist it was in his possession, two inferences arise: (1) that the will was destroyed by the testator, and (2) that the act of destruction was done animo revocandi. In re Estate of Bristol, 23 Cal.2d 221, 224, 143 P.2d 689; In re Estate of Arbuckle, 98 Cal.App.2d 562, 566, 220 P.2d 950; Anno. 3 A.L.R.2d 952. The inferences thus stated, sometimes referred to as a conclusion of law, are rebuttable. In re Estate of Bristol, supra; In re Estate of Moramarco, 86 Cal.App.2d 326, 334, 194 P.2d 740. In the present case, contestant rested on these inferences. The will of Mrs. Ronayne could not be found after her death; and when last seen and known to exist, it was in her possession.

The making of the will on May 22, 1947, is not disputed. On its execution it was handed to Mrs. Ronayne by the attorney who drew it. He retained a copy which was introduced in evidence. Mrs. Ronayne died on Sunday, June 5, 1949. It was her custom to keep 'a lot' of papers around the house and move them from one place to another. On the Friday preceding her death she stated that the will was in the house but she was not sure where. On the previous Tuesday she referred to her will and to the fact that she had mislaid it. Two other wills--one made in 1945 and another in 1946--were received in evidence. Contestant argues that the declarations of the previous Friday and Tuesday have no probative force because she did not specify to which will she referred. The court was warranted in inferring that she was referring to the last will she made--that of May 22, 1947.

Mrs. Ronayne made a will on October 3, 1945, bequeathing legacies of at least $15,000, in which she gave contestant only $500, and in which she said that the reason she was leaving him this 'small amount' was because she felt she had given him sufficient sums during their married life 'to adequately compensate him for the small amount of love and affection I have ever received from him.' She made a will on July 16, 1946, bequeathing legacies of at least $11,000, in which she gave contestant $100, and again said that she had received a small amount of love and affection from him. The will of 1947 also left contestant $100, and said that her reason for leaving him this 'small amount' was that she had amply provided for him during her lifetime. The wills of 1945, 1946, and 1947 show a consistent testamentary plan and an intention...