Swift v. Superior Court

• Court: California Supreme Court
• Writing for the Court: SPENCE; GIBSON
• Citation: Swift v. Superior Court, 241 P.2d 217 (Cal. 1952)
• Decision Date: 07 March 1952
• Parties: . * S. F. 18503. Supreme Court of California, in Bank

Page 217

241 P.2d 217

SWIFT et al. v. SUPERIOR COURT, IN AND FOR CITY AND COUNTY OF SAN FRANCISCO et al. ^*

S. F. 18503.

Supreme Court of California, in Bank.

March 7, 1952.

Rehearing Granted April 3, 1952.

Anthony S. Devoto, San Francisco, for petitioners.

Charles R. Collins, San Francisco, for respondent and petitioner Anna Creely.

Morrison, Hohfeld, Foerster, Shuman & Clark, San Franscisco, for Edward I. Creely, Andrew J. Creely and Anita O'Connor.

John Linehan, San Francisco, for certain other real parties in interest.

SPENCE, Justice.

Petitioners seek a writ of prohibition to restrain the Superior Court of the City and County of San Francisco, sitting without a jury, from taking any further proceedings with regard to the issues raised by their petition for probate of a 'lost or destroyed will' and the answers filed in contest thereof. They contend that they have the right to a jury trial for the determination of the disputed issues, and an analysis of the applicable statutory law sustains their position.

On March 21, 1951, petitioners filed a petition for the probate of an alleged fraudulently destroyed will of Thomas R. Creely, deceased. Copy of the document alleged to be the 'last will and testament' of the deceased was annexed to the petition. Prob.Code, §§ 350, 351. They claimed that prior to the deceased's death, and without his knowledge or consent, a certain niece stole the will from him and fraudulently destroyed it. The hearing was set for April 12, 1951. Certain heirs at law or next of kin of the deceased filed answers denying the material allegations of the petition and prayed that the purported will be denied probate. On the day first set for the hearing, petitioners made an oral request and also filed a written demand for a jury trial of the issues of fact raised in opposition to the will's probate. On April 26, 1951, the day to which the hearing had been continued, the probate judge refused petitioners' demand and announced his intention to proceed with the hearing without a jury. Thereafter this petition was filed to prohibit him from doing so.

The establishment of the alleged fraudulently destroyed will required proof of these facts: (1) due execution and existence of the instrument; (2) its fraudulent destruction in the lifetime of the testator, without his knowledge; and (3) its contents or provisions, by 'two credible witnesses.' Prob.Code, § 350; see 26 Cal.Jur. § 330, p. 1056; Estate of Kidder, 57 Cal. 282, 283; Estate of Duffill, 14 Cal.App.2d 284, 286, 58 P.2d 185. The code sections specifically dealing with the probate of a lost or destroyed will, Prob.Code, §§ 350-352, make no mention either directly or indirectly of a jury trial of these issues. Neither do they provide for the giving of any special notice, so that the procedure and notice would be similar to the requirements upon a petition for probate of a produced will. Prob.Code, §§ 327, 328. As proponents of the alleged fraudulently destroyed will, petitioners had the burden of proving the material allegations of their petition for 'the consideration and determination of the court'. Estate of Relph, 192 Cal. 451, 459, 221 P. 361, 364.

There is no right to a jury trial in a probate proceeding unless such right is conferred by statute. Estate of Dolbeer, 153 Cal. 652, 657, 96 P. 266; Estate of Land, 166 Cal. 538, 541, 137 P. 246; Estate of England, 214 Cal. 298, 300, 5 P.2d 428. Here proper parties have appeared and filed their answers in opposition to the probate of the proposed will. Within the contemplation of the law, Prob.Code, §§ 329, they have raised issues as to (1) the existence of the alleged instrument; (2) its fraudulent destruction, if it ever existed; and (3) its validity, if it ever existed and was fraudulently destroyed. While such objections were in the form of denial rather than affirmative averments (pertaining to matters of competency of the deceased, fraud, undue influence or the like) in opposition to petitioners' claims, they nevertheless effectively constituted a contest of the proposed will upon statutorily recognized grounds. 'Any person interested may contest the will by filing written grounds of opposition to the probate thereof at any time before the hearing of the petition for probate'. Prob.Code, § 370. 'On the trial, the contestant is plaintiff and the petitioner is defendant. Any issue of fact involving * * * the due execution and attestation of the will, or any other question substantially affecting the validity of the will, must be tried by a jury, unless a jury is waived * * *.' Emphasis added; Prob.Code, § 371. The issues here raised come within the purport of this language.

A similar situation was presented in the case of Goodale v. Murray, 227 Iowa 843, 289 N.W. 450, 126 A.L.R. 1121, involving a petition for the probate of a lost will and the procedure to be followed upon its contest. It was argued that 'the matter of the contents and all other matters germane to the establishment of the lost will (should) be submitted to a jury, instead of to the court.' 289 N.W. at page 452. As a complete answer to such problem of trial procedure, the court at page 456 of 289 N.W. quoted from the case of Coulter v. Petersen, 218 Iowa 512, 255 N.W. 684, 686, as follows: 'The question * * * as to the terms of the lost instrument is for the court in the first instance. If the court should find that the proof is insufficient to established the terms of the lost instrument, the plaintiffs, of course, must fail. If, on the other hand, the court finds that the lost instrument is properly proven and established, then the next question is whether or not the same should be admitted to probate as the last will and testament of the deceased. When this point is reached the matter stands as do all wills when they are offered for probate; that is, the same is subject to contest on any of the recognized grounds of law, and if so contested may be tried to a jury. We think marks out the simplest way of disposition of cases of this character.'

The same reasoning was followed in this state in the Estate of Black, 199 Cal. 257, 248 P. 1015, in discussing the proper procedure to be adopted in proceedings involving a petition for the probate of a will and objections thereto upon a statutory ground of contest. It was suggested there in 199 Cal. at pages 260, 261, 248 P. at page 1016, that since some of the cases seemed to hold that such situation presented 'two separate proceedings', the petition for probate of the will to be tried by the court and the contest to be tried by the jury, the two proceedings were 'independent trials of the issues involved.' That theory was rejected with the statement that an analysis of the cases shows them to proceed upon the basis that the 'hearing of the petition for the probate of the will is supplementary to, and in aid of, the hearing upon the contest.' Observing that 'the general rule as to the granting of a motion for a nonsuit' might 'well be applied', the court continued at page 262 of 199 Cal., at page 1017 of 248 P.: 'Upon the contest of the will the determination of the issues is for the jury, if a jury is demanded. Upon the hearing of the petition for the probate of the will, the determination of the issues is for the court alone. Estate of Relph, supra. * * *

'We are satisfied that, upon proceedings for the probate of a will involving both a contest of the will and a petition for probate, the court is not at liberty, upon the preliminary and formal showing of due execution, to finally determine upon its merits any of the issues raised by the contest, but is limited to a determination of whether or not a prima facie case has been established in favor of the validity of the will, sufficient to warrant the submission of the case to a jury.

'Inasmuch as section 1312 of the Code of Civil Procedure (now Prob.Code §§ 370, 371) guarantees to either party litigant the right to a trial by jury upon any of the issues raised by the contest, it seems to us that the issues should be submitted to a jury for its determination, unless there is such a dearth of evidence that the granting of a motion for a nonsuit would be proper.'

While the Estate of Black did not involve a lost or destroyed will, the same principle of law would apply in distinguishing the procedure appropriate to the matter of its preliminary proof from that pertaining to the trial of the issues of fact raised in contest of its admission to probate. As was aptly said in McCormick v. Jernigan, 110 N.C. 406, 14 S.E. 971: 'The only difference between the probate of a will which can be produced and one which has been lost is as to the nature and quantity of the evidence required to prove it.' Here upon the institution of the contest before probate, the offer to prove...