Estate of Walters

99 Cal.App.2d 552 (1950) Estate of MARIA R. WALTERS, Deceased. ROSE BREWSTER, Appellant,

v.

BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION et al., Respondents.

Civ. No. 14421. California Court of Appeals. First Dist., Div. One.

Sept. 22, 1950. Robert E. Hatch for Appellant.

Norman Elkington and Sylvester Andriano for Respondents.

PETERS, P. J.

This is a frivolous appeal.

Maria R. Walters died testate on December 22, 1945, her will having been executed on November 19, 1945. On January 11, 1946, her will was admitted to probate, and the respondent bank appointed executor. On March 5, 1946, respondent Peter Crann filed a will contest alleging that he was a devisee under a prior will executed by Maria, and that she was mentally incompetent when the will of November, 1945, was executed. On January 28, 1947, the beneficiaries named in the will admitted to probate and Crann compromised their respective claims, and, pursuant to such compromise, the parties stipulated that the Crann contest should be dismissed.

Four days before this dismissal was entered, that is, on January 24, 1947, one Bernard Stimmel, without leave of court, filed a document entitled "Joinder in Petition for Revocation of Probate of Will." In this petition Stimmel requested that he "be permitted to join in the contest" then pending, and that the probate of the will be revoked. In April of 1947, Crann moved to strike this document from the files on the ground that it had been filed without leave of court and without authority of law. The motion was granted. Stimmel appealed, one of his attorneys on such appeal being Robert Hatch, the attorney for appellant on the present [554] appeal. The order of dismissal was unanimously affirmed by Division Two of this court. A petition for hearing was denied by the Supreme Court, one justice dissenting. (Estate of Walters, 89 Cal.App.2d 797 [202 P.2d 89].) This opinion was filed in January, 1949, and became final in March of that year.

On May 31, 1949, at a time when both the Crann and Stimmel contests were no longer pending, both having been dismissed, appellant Rose Brewster, with Hatch as her attorney, filed what purports to be a contest to revoke the probate of the will. She alleged that she was one of the heirs of Maria Walters, that the will admitted to probate some three years and five months before the contest was filed had been improperly executed, and had been executed while the decedent was of unsound mind, and while she was under the undue influence of certain persons. Upon motion of respondent Crann, the Brewster contest was stricken from the files, and, on the same day, the court entered a decree of rateable distribution. Brewster appeals from the order and from the decree.