Opinion
L. A. No. 5216.
January 15, 1918.
APPEAL from an order of the Superior Court of San Diego County, admitting a will to probate. C.N. Andrews, Judge.
The facts are stated in the opinion of the court.
John H. Bowlby, for Appellants.
Luce Luce, for Respondent.
This is an appeal from an order made November 7, 1916, probating two wills of Andrew Bergland, one will dated June 7, 1910, with two codicils; the other will dated August 29, 1915. Notice of this decision was served on appellants on November 10, 1916. Ten days thereafter appellants served their notice of intention to move for a new trial, but took no further steps thereon until February 10, 1917, three months thereafter, when they served notice to bring said motion on for hearing February 19, 1917, at which time the motion was dismissed for lack of jurisdiction. Respondent moves to dismiss on the ground that the notice of appeal, served and filed March 8, 1917, was too late, for the reason that no motion for new trial was pending within the meaning of section 939 of the Code of Civil Procedure, within thirty days of said notice of appeal. This position is not well taken. The filing of the notice of intention to move for new trial within time started a new proceeding which remained pending until disposed of by the court or by operation of law, to wit, on February 10, 1917, and therefore the motion to dismiss should be denied.
On February 20th appellants obtained an order extending to March 1, 1917, the time to file a bill of exceptions to the decision of the court, and on that date the bill of exceptions was served on respondent. Respondent gave notice to dismiss the bill of exceptions for the reason that the same was not served within time. The motion to dismiss the bill of exceptions was denied by the court, and exception thereto being reserved therein the bill of exceptions was settled on March 14, 1917. Respondent's contention that the proposed bill of exceptions was not presented within time is based upon the same contention, viz., that proceedings for new trial were not pending, and for the above reason is not well taken (Code Civ. Proc., sec. 650).
The will of June 7, 1910, made respondent Kate J. Misner a residuary legatee and devisee as to one-fourth of decedent's property. The will of August 29, 1915, gave her all the money of decedent in bank; but it is claimed that respondent was not entitled to have said last-mentioned will probated because in the will of June 7, 1910, there is a proviso cutting off with five dollars all contesting devisees and legatees; and that respondent was a contestant within the meaning of said proviso for the reason that she had proposed for probate another and later will, dated December 25, 1915, revoking all former wills. All said petitions and contests thereof were heard together.
The mere proposing for probate of a later and inconsistent will was not a violation of a provision against contest contained in an earlier will. It was her duty to file the will (Code Civ. Proc., sec. 1298) and her right to petition for its probate (Code Civ. Proc., secs. 1299, 1301). Appellants contested the validity of said will, and, although present, did not oppose or except to the court's order of dismissal on respondent's motion of her petition for its probate and was not prejudiced by such dismissal. In their argument appellants assume that the allegations of their contest that said will was forged and that the decedent was incompetent on December 25, 1915, are true, but no evidence thereon was offered. The question of whether or not respondent has forfeited her right properly arises on distribution ( Estate of Hite, 155 Cal. 436, [17 Ann. Cas. 993, 21 L. R. A. (N. S.) 953, 101 P. 443], and cannot be determined on this appeal.
The motion to dismiss the appeal is denied and the order appealed from is affirmed.
Melvin, J., and Victor E. Shaw, J., pro tem., concurred.