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Swift v. Superior Court

Supreme Court of California
Mar 7, 1952
241 P.2d 217 (Cal. 1952)


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__ Cal.2d __ 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 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.

         [241 P.2d 218] 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; [241 P.2d 219] 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 the purported will was arrested, and the probate thereof must await the determination [241 P.2d 220] of the contest. See Estate of Cook, 205 Cal. 581, 589, 271 P. 1083; Murray v. Superior Court, 207 Cal. 381, 385, 278 P. 1033; Estate of Matthiessen, 10 Cal.App.2d 323, 327-328, 52 P.2d 248. While in the connected hearings the matter of preliminary proof of the instrument is for the consideration of the court without the intervention of a jury, the question of whether grounds exist for refusing its admission to probate is triable to a jury. 26 Cal.Jur. § 340, pp. 1076, 1078; 57 Am.Jur. § 989, p. 642; Goodale v. Murray, supra, 227 Iowa 843, 289 N.W. 450, 456.

        In Budde v. Superior Court, 97 Cal.App.2d 615, 218 P.2d 103, it was held that parties filing written opposition to petitions for the appointment of a guardian of the person and estate of an alleged incompetent were entitled to a jury trial. Numerous California cases considering the right to such trial in probate proceedings were reviewed, and it was concluded that the existence of the right depended on whether there was statutory authority for the formation of triable issues of fact in the particular proceeding. Estate of Perkins, 21 Cal.2d 561, 566-567, 134 P.2d 231, see, also, Estate of Smead, 12 Cal.2d 20, 24-25, 82 P.2d 182; Estate of Van Deusen, 30 Cal.2d 285, 292, 182 P.2d 565. As above noted, there is statutory authority for the joinder of triable issues upon opposition to the probate of a will and the submission of such issues to a jury if demanded. Prob.Code, § 371. Cases like Estate of Bell, 58 Cal.App.2d 333, 338, 136 P.2d 804, and Estate of Cazaurang, 75 Cal.App.2d 217, 226, 170 P.2d 694, denying jury trials in certain specified probate proceedings because there was no express statutory authorization therefor, are not in point.

        The foregoing principles are illustrated in Estate of Carr, 82 Cal.App.2d 780, 187 P.2d 912, 913. There it was held that where a will contest with request for a jury trial was instituted prior to probate and then before the trial thereof a second and conflicting instrument was offered for probate, the question as to which was the later will was for 'the court to decide.' Such conclusion was reached because 'Section 371, Probate Code, prescribes the issues triable by jury' in a will contest before probate and 'that question is not among them.' 82 Cal.App.2d at page 782, 187 P.2d at page 913. However, it was deemed error for the court, in hearing the petitions for probate of the two wills, to admit one will to probate and reject the other when a contest as to one will triable by a jury was pending and undisposed of. On this point reference is made to the Estate of Mollenkopf, 164 Cal. 576, 578, 129 P. 997, where it was said: 'It is not disputed that if the written opposition was properly served on petitioner's attorney, and was not filed too late to entitle it to be considered, it was a bar to the admission of the alleged will to probate until disposed of in the manner provided by law. Such disposition involved an opportunity to those interested in the will to answer the opposition, and a trial of the issues thus made, by a jury if either party so requested.' In further clarification of the point, the court in the Estate of Carr also cites and quotes the above language from the Estate of Black, 199 Cal. 257, 262, 248 P. 1015, recognizing the dual nature of proceedings for the probate of a will subject to contest, both inextricably bound together to reach a proper solution of the problem, with the court's duty limited to the determination of whether a prima facie showing in favor of the validity of the will has been made to warrant submission of the issues on contest to a jury.

         Question is also raised here as to the propriety of petitioners' demand for a jury trial because of an asserted failure to comply with the Rules for the Superior Court. 33 Cal.2d 1. Reference is made to Rule 6, providing for a memorandum to set civil cases, and Rule 18, regulating the procedure to be followed by a party desiring a jury trial 'where the right thereto is not guaranteed by law' in other words, where the granting of a jury trial rests in the discretion of the court. See 57 Am.Jur. § 926, p. 609. Neither situation is presented here. While the record is not before us, cf. Estate of Cone, 35 Cal.App.2d 226, 228, 95 P.2d 183, it is not disputed that on the day first set for hearing the petition for probate of the alleged fraudulently destroyed will [241 P.2d 221] and following the filing of the objections thereto, petitioners made both an oral and a written demand for a jury trial. In view of the provision in section 371 of the Probate Code that the issues of fact therein mentioned as grounds for contest 'must be tried by a jury, unless a jury is waived as provided by the Code of Civil Procedure', it follows that the above-mentioned Rules 6 and 18 do not apply in qualification of this mandate of the law.

        It is ordered that a peremptory writ issue, prohibiting the probate court from proceeding with the hearing of the disputed issues in contest of the probate of the will otherwise than by jury trial, in conformity with the views herein expressed.

        GIBSON, C. J., and SHENK, EDMONDS, CARTER, TRAYNOR, and SCHAUER, JJ., condur.

Summaries of

Swift v. Superior Court

Supreme Court of California
Mar 7, 1952
241 P.2d 217 (Cal. 1952)
Case details for

Swift v. Superior Court

Case Details

Full title:Swift v. Superior Court

Court:Supreme Court of California

Date published: Mar 7, 1952


241 P.2d 217 (Cal. 1952)

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