Public-domain · open source
OpenJurist

180 Cal. 570

182 P 285

Moore v. McKevitt

California Supreme Court

Decided June 16, 1919

California Supreme Court · decided 1919-06-16

<p>[1] Estates of Deceased Persons—Probated Will—Offer of Another Will not a Contest.—While section 1333 of the Code of ¡Civil Procedure relates to the conelusiveness of the unopposed probate of a will against a contest, the offer of another will is not a contest of the one admitted to probate.</p> <p>[2] Id.—Powers and Limitations of Probate Courts—Special Statutes.—The probate of wills is purely a creature of statute, and the statutes pertaining to estates of deceased persons must be looked to rather than those of general application for the powers and limitations of the probate courts.</p> <p>[3] Id.—Probate of Will—Expiration of Tear Without Contest— Eight to Probate Subsequent Will.—Section 1327 of the Code of Civil Procedure, providing that the probate of a will may be contested within one year after its probate, and section 1333, making the probate conclusive unless there has been a contest filed within one year, do not prevent the offering more than one year after such probate of another document as a genuine and subsequent will, such offer not being a contest of the will admitted to probate.</p> <p>[4] Id.—"Will Contest—Mental Incapacity—Evidence—Testimony of Attorney.—In a will contest on the ground of mental incapacity, it was error to refuse to permit an attorney, who for many years had represented the testator and who was called as a witness and testified that in his opinion the testator was of sound and disposing mind during the entire period of their acquaintance, to state what the testator testified to while on the witness-stand in a certain action, from a document in the form of a bill of exceptions prepared by such attorney while its contents were fresh in his memory, using the court reporter’s notes to cheek it, and containing the testator’s testimony.</p> <p>[5] Id.—Testimony from Writing—¡Section 2047, Code of Civil Procedure.-—The part of section 2047 of the Code of Civil Procedure which provides that a witness may testify fro-m a writing, though he retain no recollection of the particular facts, is mandatory.</p> <p>[6] Id.—Suppression of Evidence — Presumption — Erroneous Instruction.—In a contest of a will, the giving of the instruction with respect to the presumption of law that evidence willfully suppressed would be adverse if produced, was error where the record fails to disclose any instance of suppression of evidence or anything that could be properly construed as such withholding of facts in defendant’s possession, and sueh error was prejudicial where one of the counsel for plaintiffs in his argument sought to apply the rule embodied in the instruction to the circumstance that no person named in the will had been called as a witness.</p> <p>[7] Id.—Failure to Call Legatees—Evidence not Suppressed.—$n a will contest the failure to call as witnesses those named as legatees in the will is not suppression of evidence.</p>

Relies on In Re Estate of Baker · Pearson v. Elliott · In Re the Estate of Marx

Good law ✅— No negative treatment on recordhow we know

Decided 1919-06-16

How this case has been cited

Cited by 51 later decisions — most recently December 2008 · most notably 54 Cal. App. 333 - People v. Peete (1921), 59 Cal. App. 3d 451 - Neumann v. Bishop (1976)

51 state decisions

1401919192019301940195019601970198019902000decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

ANGELLOTTI, C. J., Dissenting.

¶1 I cannot concur in the conclusion that the superior court could properly entertain the petition for the probate of the alleged later will, in the face of the judgment admitting the will of January 13, 1896, to probate. That judgment had become final, and more than one year having elapsed from its entry without any contest, the probate of such will is conclusive against the world, except infants and persons of unsound mind. It is so expressly provided by section 1333 of the Code of Civil Procedure. The whole matter of wills is regulated in this state by statute. Under our statute, as has often been said, the proceeding in proof of a will is a proceeding in rem, “to determine the legal status of a written instrument,” in which all persons are required to present their claims and by which the world is bound. (See Estate of Baker, 170 Cal. 578, 585, [150 Pac. 989]; Estate of Allen, 176 Cal. 632, [169 Pac. 364].) A judg *587 ment admitting a written instrument to probate as the will of a deceased! person is necessarily a judgment that the instrument is the will of the deceased, which, of course, means that it is his last and only effective will. When a paper is offered for probate as the will of a deceased person, if any person interested claims that it is not the true will for the reason that there is a later will, he unquestionably may contest the paper offered on that ground, for his contention is one “substantially affecting the validity of the will” offered.- (Code Civ. Proc., subd. 4, sec. 1312.) As in the case of original probate, such a contest may be made after, probate on the ground that the admitted will is not the will, because of the execution of a later will. The petition for probate necessarily tenders to the whole world the issue that the paper offered is the will of the deceased, and the whole world is bound by the judgment except in so far as the statute permits further proceedings.

¶2 The only further proceeding authorized by the statute is the contest of the validity of the admitted will, which must be instituted within one year from probate, with the right to infants and persons of unsound mind to so contest within one year after their respective disabilities are removed. It is my opinion that in the absence of any such contest within the year, the status of the instrument as the last will of the deceased is conclusively and for all time established as against all interested parties in so far as any proceeding in the probate court is concerned. This it seems to me is substantially recognized in all our previous decisions, for even in Estate of Walker, 160 Cal. 547, [36 L. R. A. (N. S.) 89, 117 Pac. 510], all the justices concurred as to the question of finality of the proceedings in probate, and the probate of the subsequently discovered will was justified by the majority of the justices concurring in affirmance as being solely for the purpose of establishing a foundation for the prosecution by the beneficiaries of their rights in equity. It was certainly expressly recognized in Estate of Marx, 174 Cal. 762, [L. B. A. 1917F, 234,164 Pac. 640], as is shown by the majority opinion herein.

¶3 The effect of the majority opinion in this case apparently is that a decree admitting a will to probate is not an adjudication that the will so admitted is the will of the deceased, but simply that it is an instrument that was at one time duly executed as a will, which will stand as the will pending the production and *588 probate of a later instrument so executed. Such I do not believe to be the theory of our statutory system relative to the proof of wills. Therefore, I am constrained to dissent from the judgment.

¶4 Lawlor, J., concurred.

¶5 Rehearing denied.

¶6 Lawlor, J., Olney, J., and Angellotti, C. J., voted for a rehearing. Shaw, J., 'Wilbur, J., and Lennon, J., voted against a rehearing.

¶7 Melvin, J., was absent. '

/180/cal/570 · .json · Public domain