Opinion
NOT TO BE PUBLISHED
Superior Court County Super. Ct. No. PR040293 of San Luis Obispo Martin J. Tanageman, Judge
Wiley Ramey, for Appellant
Christian E. Iversen, for Respondent.
YEGAN, J.
Jacqueline Marie appeals from the trial court's order granting respondent Lorene Kirby's motion to determine whether any person other than Kirby is entitled to a distribution from the estate of Clinton Earl Cole. Ms. Marie alleges that Cole executed a new will in the months before his death which left to her one half of his estate. The trial court found that neither appellant nor another contestant of Cole's will has an interest in Cole's estate. It denied appellant's "Will Contest and Grounds of Opposition to Probate of 1979 Will" because it found that the contest was untimely under Probate Code section 8270. The trial court further found that appellant was precluded by a prior judgment from pursuing her will contest. Although we conclude that appellant's "will contest" was not untimely under section 8270, we further conclude that the contest is barred by the prior judgment. Accordingly, we affirm.
All statutory references are to the Probate Code unless otherwise stated.
Facts
Cole died on August 4, 2004. Respondent petitioned to admit to probate a 1979 will in which Cole left his entire estate to respondent and disinherited all of his other children. Peggy Hines, one of the disinherited children, filed a will contest. Appellant, who describes herself as "a very close companion" of Cole's, filed a creditor's claim in that proceeding. She also testified at the trial on Hines' will contest about her relationship with Cole and the circumstances surrounding his purported execution of a new will in 2004. Appellant testified that she bought forms for Cole to use to write a new will. Sometime later, Cole told her that he had executed a new will leaving one-half of his estate to appellant. The trial court rejected the will contest and entered judgment admitting the 1979 will to probate. We affirmed the judgment in an unpublished opinion. (Haynes v. Kirby (Sept. 18, 2006, No. B185707) [nonpub. opn.].)
After the remittitur issued on December 6, 2006, respondent filed a motion to determine whether appellant or Hines had an interest in Cole's estate. Appellant filed a document entitled, "Will Contest and Grounds of Opposition to Probate of 1979 Will." In it, appellant repeats the claim to which she had previously testified, that Cole executed another will in February 2004 that "provided" for her. She alleges the will is in Cole's house and that respondent has refused to search for it. She requests that the house be searched, that probate of his 1979 will be denied, and that Cole's estate be distributed "according to the intentions of the Decedent, which is one-half to [appellant] and the remainder to be divided among the natural heirs of the Decedent." The trial court rejected appellant's contest on the grounds that it was untimely under Probate Code section 8270 and that all of the issues raised in the contest had been decided by the prior judgment.
Discussion
The trial court found that appellant's "contest" was untimely because it was filed more than 120 days after the order admitting Cole's will to probate. Section 8270 provides that a petition to revoke the probate of a will must be filed within 120 days after a will is admitted to probate. Here, however, the order admitting Cole's will to probate was the subject of an appeal that stayed proceedings in the trial court, including the limitations period provided in section 8270. (§ 1303, subd. (b); Scott v. Superior Court (1932) 125 Cal.App. 513, 521.) Because appellant filed her "contest" within 120 days after the remittitur issued, it was timely for purposes of section 8270.
The trial court also relied, however, on an alternate ground that the parties addressed both in the trial court and in their briefs on appeal: that appellant's will contest and opposition to the probate of Cole's will is barred by the prior judgment on Hines' will contest. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216 [" 'a decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason . . . .' "].) As the trial court correctly found, appellant had notice of the prior proceedings and participated in them by filing a creditor's claim and by testifying as a witness at the trial. (Whittlesey v. Aiello (2002) 104 Cal.App.4th 1221, 1226.) She shared a common interest with Hines because they both sought to have the 1979 will declared invalid so that they could inherit under the will they alleged was executed by Cole in 2004. (Weir v. Ferreira (1997) 59 Cal.App.4th 1509, 1521-1522.) All of the facts upon which appellant bases the current contest were presented to the trial court during the trial on the prior will contest. The judgment in that matter conclusively determined that the 1979 will, rather than some other document, was Cole's will. (Levy v. Cohen (1997) 19 Cal.3d 165, 171.) Appellant is bound by the prior judgment and may not relitigate the validity of the 1979 will. (Estate of De Lavega (1958) 50 Cal.2d 480, 487; Estate of Gump (1991) 1 Cal.App.4th 582, 608-609; Lazzarone v. Bank of America (1986) 181 Cal.App.3d 581, 591.)
The judgment (order on petitioner's motion to determine if person entitled to distribution of estate) is affirmed. Costs to respondent.
We concur: GILBERT, P.J., COFFEE, J.