Martinovich v. Pelton

California Court of Appeal Apr 5, 1956 No. Civ. 21255Published

Before: Nourse (Paul)

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Holding. The trial court's judgment denying probate of a will is affirmed because the court has the exclusive authority to determine witness credibility, including the discretion to credit trial testimony over prior inconsistent deposition testimony.

Issues

Whether the trial court erred in relying on trial testimony from witnesses who admitted to committing perjury in their prior depositions.
Whether the trial court's findings regarding the lack of due execution of the will were supported by substantial evidence.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is the exclusive province of the trial court to pass upon the credibility of witnesses, and in so doing it may, in its discretion, believe the testimony given at the trial although they may have been conclusively shown to have perjured themselves”

“It was the exclusive province of the trial court to winnow the grains of truth from the chaff of falsehood in the testimony of these witnesses, and its determination of what was true and what was false cannot be reviewed by this court”

[513]

NOURSE (Paul), J. pro tem.

The appellant, Tony Martinovich, as a legatee and devisee of Sadie Pelton, appeals from a judgment denying his petition to have admitted to probate a document offered by him as the last will and testament of said decedent. The respondent Norman Pelton is the son of decedent. He filed a written opposition to appellant’s petition. His second ground of contest was that the instrument offered as the last will of Sadie Pelton had not been executed in the manner or form required by law for the execution of a will.

The trial court found that the decedent had not signed the will in the presence of the attesting witnesses or either of them, had not requested said witnesses or either of them to witness her will, and had not declared to them that it was her last will and testament; and upon these findings made the judgment appealed from.

The appellant attacks the judgment on the sole ground that “there was no substantial evidence to justify or support the judgment.”

The following facts are established by substantial evidence. The will in question is a carbon copy of a typewritten instrument. It bears the signature of the decedent, and after her signature there is set forth an attestation clause in the usual form, which is signed not only by the testatrix but by two witnesses.

After the appellant’s petition was filed and the will filed for probate, the depositions of both attesting witnesses were taken. In their depositions they testified that the decedent had requested them to witness her will, that she had signed it in the presence of both witnesses, and that each witness had signed in the presence of the testatrix and in the presence of the other attesting witness. They testified that this took place in an automobile at the home of the witness Kaitis. The witness Kaitis signed her deposition, but the witness Buddin did not sign hers. The deposition of the witness Kaitis was taken in December of 1953, and that of the witness Buddin in February of 1954.

The case was set for trial on October 6, 1954, before a jury. At that time counsel for the proponent was unable to find the attesting witnesses, and the matter was continued at his request and was again called for trial on January 6, 1955, at which time the parties waived trial by jury.

Martinovich v. Pelton

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