Opinion
Rehearing Denied Jan. 27, 1931
Hearing Granted by Supreme Court Feb. 19, 1931
In the matter of the estate of J.H. Smith, deceased. Application by Catherine A. McKenna for a writ of prohibition to restrain the Superior Court of Los Angeles County and Hon. Charles S. Crail, a Judge thereof, from proceeding with the contest of a will after probate, instituted by J. Truitt Bustamente and another.
Peremptory writ issued.
COUNSEL
Catherine A. McKenna and J. Everett Brown, both of Los Angeles, for petitioner.
H.L. Pratt, of Los Angeles (Woodruff, Musick & Hartke, of Los Angeles, of counsel), for respondents.
OPINION
ARCHIBALD, Justice pro tem.
Petitioner is applying for a writ of prohibition to restrain the superior court of Los Angeles county and the honorable Charles S. Crail, a judge thereof, from proceeding with the contest of a will after probate.
The testator died in Los Angeles county August 9, 1924, leaving real and personal property therein and also a will dated July 26, 1924, in which J. Truitt (now J. Truitt Bustamente) and Annie Dupea were named as legatees, which will was admitted to probate November 30, 1925. This will was unsuccessfully contested by the four adult children of decedent, who appealed from the order admitting the document to probate; the appeal being dismissed January 7, 1929. October 26, 1928, petitioner here, Catherine McKenna, filed a petition in said estate for the probate of an olographic will dated September 22, 1924, and claimed to have been executed by decedent, in which the four children of decedent were named as legatees to the extent of $500 each and petitioner was given the residue of the estate. Thereafter, and on November 20, 1928, said Bustamente and Dupea filed a contest and objections to the probate of such olographic will through their attorneys, Randall J. Hood and W.J. Clark, and for grounds of contest alleged that the latter will was not the will of decedent, that it was executed by reason of the undue influence of said petitioner, and that decedent was of unsound mind at the time of its execution. Petitioner demurred to the contest and objections so filed, and also moved to strike and dismiss the same, generally on the ground of lack of interest in contestants by reason of the alleged invalidity of the bequests to them in the will under which they were claiming, due to uncertainty and lack of complete description of the property mentioned. The matter was continued from time to time until January 18, 1929, contestants not appearing at any time, and petitioner being present at all times, and the demurrer was sustained, fifteen days to amend being given, and the petition for revocation of the first will and for probate of the olographic will was continued to February 8, 1929. On the same day, January 18, Bustamente and Dupea filed an amended contest, setting up the same grounds as the first contest, and also that the olographic will was not in the handwriting of the deceased and that it was a false, fraudulent, and forged instrument. To said amended contest petitioner filed a general and special demurrer to each ground of contest and also a motion to strike and dismiss the same on the grounds of lack of interest, that the allegations of the first and second grounds of contest were conclusions of law, and that one ground of contest contradicted the other. The motion to strike bears the following indorsement: "Received copy of the within motion this 28th day of January, 1929. Randall J. Hood by Secy." (Exhibit A.) Exhibit B, a copy of the demurrer, does not bear any indorsement of service accepted, but exhibit C addressed to contestants "and their attorneys," recites that the motion to strike and demurrer to the amended contest "herewith served on you" will be brought on for hearing in said Superior Court on February 8, 1929, at 10 a.m. The proof of service attached to said notice recites that a true copy of the same was served on the attorneys for contestants January 29, 1929, by leaving a copy thereof with Randall J. Hood at his office, "and that said notice was handed by Randall J. Hood back to the affiant, with request that said affiant take same to the office of Wm. J. Clark," and that affiant did so immediately, and left same "at the office of the said Clark, with the person then in charge of said office." Contestants do not deny that the hearing of the motion was noticed for February 8, 1929, at 10 a.m., in said court, but they allege that the "clerk of said superior court did not fix the 8th day of February, 1929, or any other day" for the hearing of said demurrer and motion, and that neither contestants nor their attorneys "ever received any notice from the clerk of said court" fixing said date or any other date for said hearing; and they also allege in their answer that there was a rule of the Superior Court in force and effect at the time requiring the notice to be so fixed and given. On February 8th petitioner appeared at the time and place fixed in said notice, but no one appeared for contestants. The court called and disposed of all other matters on the calendar, and, the contestants not then appearing, proceeded to hear the demurrer and motion to strike. It is admitted that the court had the first will before it at the time of said hearing, and that it granted the motion to strike, sustained the demurrer, and proceeded to hear proofs on the petition to revoke the first will and admit the olographic instrument to probate; also that the court made its order revoking the first will and admitting the latter will to probate, as well as ordering that letters testamentary issue to petitioner. Such letters were issued to her February 9, 1929.
On April 2, 1929, attorneys for contestants served on petitioner and filed a notice that on April 5 counsel would "move to vacate and set aside each of the following proceedings: Contest and opposition to probate of will dated September 22, 1924, denied. Amended contest to probate of will, denied. Motion to strike contest of will dated September 22, 1924, granted. Demurrer to amended contest of will sustained. Will admitted to probate. Certificate of proof of will filed." The record before us does not show that any grounds were stated in the motion or that it referred to anything upon which it would be based, and the language above used is practically a copy of the clerk’s minutes of February 8 relative to the action of the court on the various matters before it that day in said estate of J.H. Smith, deceased. On April 9 the motion was heard, over petitioner’s objection thereto, all parties being present, and was granted "as prayed for in said motion." There were two written orders made, based on the motion, one on April 24th, in practically the language of the motion in its reference to what was vacated, and a nunc pro tunc order dated June 6th, which recites that it is made "so that the records may show the true decision made by the court" and describes the orders sought to be vacated. Petitioner moved to strike the order of April 24th, and it was stipulated by counsel that such order might be stricken. Thereafter the nunc pro tunc order of June 6 was made by the court, which petitioner moved to strike as soon as she learned thereof, as well as all other orders made by the court based on said motion heard April 9, 1929, on the ground, among others, that the court was without jurisdiction to make any order except to "dismiss said motion of April 2nd." Such motion came on for hearing on November 15, 1929, both sides being represented by counsel, and was granted, and a written order was made on November 19th vacating all orders made on said motion of April 9th and also providing "that all of the orders made herein on the 8th day of February, 1929, shall be in force and remain as made of that date."
Thereafter, and on February 7, 1930, the contestant J. Truitt Bustamente, appearing for herself, filed another contest to or petition to revoke the will of September 22, 1924, on the same grounds mentioned in the first contest filed, which contest was stricken on motion of petitioner on March 3, 1930, the order reciting that notice of the hearing "was regularly given to the said Mrs. J. Bustamente, in the manner provided by law."
On May 14, 1930, said J. Truitt Bustamente and Annie Dupea filed another contest to or petition to revoke the will of September 22, 1924, on the same grounds as the amended contest filed by them on January 18, 1929, and stricken by the order of February 8th. The hearing on such contest was noticed for June 20, 1930. On May 24th petitioner McKenna moved to dismiss and strike such contest or petition on the ground that the matters of contest alleged had been adjudicated adversely to the claims of contestants on the several prior contests filed, and on the further grounds that it was filed too late, and that, under section 1327 of the Code of Civil Procedure, having filed a contest before probate, they were not entitled to file a contest thereafter.
The above proceedings were had before various judges of the Superior Court. The motion last referred to was the first proceeding in said matter to come on for hearing before the honorable Charles S. Crail, judge of said court, and on July 1, 1930, he denied said motion and fixed the 22d day of September, 1930, for the hearing of said contest, whereupon petitioner instituted the proceedings now before us.
It is contended by petitioner that the order of February 8th striking the contest then pending was a final adjudication of all matters alleged therein by contestants, that, having contested the will prior to probate, the latter cannot contest it on the same grounds after probate, and that the contest of May 14, 1930, is barred by the terms of section 1333 of the Code of Civil Procedure. Respondents on the other hand urge that the contest prior to probate was not determined on the merits, and was therefore no bar to a contest after probate on the same grounds, and that, the order of November 19, 1929, being a nunc pro tunc order finally admitting the olographic will to probate, contestants could at any time within six months from that date file a new contest.
From the record before us it would seem that the amended contest filed January 18, 1929, alleged the same grounds as the contest or petition for revocation filed May 14, 1930. The demurrer to and motion to strike the amended contest, or petition, filed January 18, 1929, was based on grounds that went to the merits as well as to the form of the petition. The record is silent as to the grounds upon which action was taken by the court, and ordinarily in such a case no bar could arise. Kirsch v. Kirsch, 113 Cal. 56, 61, 45 P. 164. In the present case, however, the court proceeded, after sustaining the demurrer and granting the motion, to take proof on the petition to revoke the first will and to probate the olographic will, and made its order revoking the former and admitting the latter to probate. In the face of that action, we must presume that the court sustained the demurrer and granted the motion to strike on the jurisdictional grounds urged, or else presume that it erred in proceeding as it did instead of granting a reasonable time, not exceeding ten days, to amend, as it should have done under section 1312, Code of Civil Procedure, as it existed at that time, if the orders made were based on the grounds going to matters of form only.
Respondents admit that notice of hearing of the motion to strike and demurrer to the amended contest was given, but claim that under section XX of the rules adopted by the judicial council regulating the business of the superior court the time of hearing both demurrer and motion could only be fixed by the clerk of the court, upon whom the duty also devolved of mailing a notice of the date so fixed to counsel; and, that not having been done, the court had no jurisdiction to act on either the demurrer or motion on February 8th. Rule XX so referred to appears in the rules adopted by the judicial council on May 5, 1928, effective August 1, 1928. On December 19, 1928, the judicial council adopted a new set of rules, effective January 1, 1929, providing a different method. Rule XIX thereof provides for the filing of a memorandum of points and authorities relied on with each demurrer and motion, and, if a demurrer is filed without such memorandum, the clerk is required to place it for hearing on the next succeeding law and motion calendar; and in counties having nine or more judges, where the memorandum accompanies the demurrer, the hearing is automatically had on the law and motion calendar the fourth day thereafter. The scheme adopted is so in conflict with the former rules that there would seem to be no question but that they supersede the rules of May 5, 1928, and rule XXVII so provides. Rule X of the rules adopted by the Superior Court provides: "1. All demurrers and motions made on notice shall, except as herein otherwise provided, be heard and determined in one department to be designated, from time to time, by the court. When so designated such department shall be known as the Law and Motion Department. *** The provisions of this rule shall not apply to the following proceedings, which shall be had in the several departments to which the cases shall have been assigned as provided elsewhere in these rules, to-wit: *** (4) demurrers, orders to show cause, motions and other matters in probate *** proceedings." This rule would not seem to be in conflict with rule XIX of the judicial council, at least so far as the noticing of motions is concerned, and the notice given of the hearing of the motion on February 8, 1929, appears to comply with it. Under the record before us the notice would seem to have been properly made.
No appeal was taken from the order revoking the first will and admitting the later will to probate, and there would seem to be no way to determine in this proceeding whether or not the court erred in ruling as it did on the motion to strike. Mooney v. Superior Court, 183 Cal. 705, 192 P. 542. It would seem that error in judgment in sustaining a demurrer to a will contest or in granting a motion to strike can only be reached by an appeal from the order admitting the will to probate, made after such rulings. Section 963(3), Code Civ.Proc.; Estate of Stierlen, 199 Cal. 140, 142, 248 P. 509.
The notice of motion by contestants Bustamente and Dupea to vacate and set aside all orders made on February 8, 1929, appears not to have specified any grounds upon which it would be made or papers on which it would be based, and that would seem to be a necessary requisite to the hearing of such a motion. Section 1010, Code Civ.Proc.; Ross v. San Diego Glazed C.P. Co., 50 Cal.App. 170, 194 P. 1059; Mojave, etc., R. Co. v. Cuddeback, 28 Cal.App. 439, 442, 152 P. 943. The court therefore did the only possible thing when it vacated all orders based on such motion. The validity of the orders of February 8, 1929, did not depend upon the nunc pro tunc order of November 19, 1929. On principle, it would seem that the orders based on the defective motion to vacate had no effect at all, but, assuming they did, their vacation would simply leave the proceedings where they were before such orders were made, and the date of the probate of the olographic will would not be changed. Estate of Mitchell, 126 Cal. 248, 58 P. 549.
The grounds of petitioner’s motion to strike the contest or petition to revoke filed February 7, 1930, by J. Truitt Bustamente appear from the record to have been all directed to the merits. Respondents claim that no notice of the hearing of this motion was given, but the record does not show what was done and the recital in the order is conclusive on us. Estate of Parsons, 159 Cal. 425, 114 P. 570.
The next petition to revoke was filed by both Bustamente and Dupea on May 14, 1930, more than a year after the admission of the olographic will to probate; and, even if new grounds of contest had been alleged, section 1333 of the Code of Civil Procedure would seem to be a bar to proceeding with a hearing thereon in the face of a motion to strike based on that ground.
Another ground mentioned in the motion to strike said petition was that contestants, having filed a contest before probate, were not entitled to contest the will after probate. Section 1327, Code of Civil Procedure, as amended May 25, 1929 (St.1929, p. 860, § 2), provides: "When a will has been admitted to probate, any interested person, other than a party to a contest filed before probate pursuant to section 1312 of this code *** may, at any time within six months *** contest the same or the validity of the will." (Italics ours.) The contestants above mentioned would seem to be expressly excepted by such section from the right to contest after probate, particularly in view of the fact that their contest before probate of the same will on the same grounds was determined adversely to them.
We are heartily in accord with the very just rule of having all cases decided on the merits after a full hearing of the evidence, but in the face of the record before us we see no way that the same can be done in this case. The court below should have granted the motion to strike filed by petitioner to the above-named contestants’ contest or petition to revoke on May 14, 1930.
Let a peremptory writ of prohibition issue as prayed.
We concur: WORKS, P.J.; IRA F. THOMPSON, J.