Sullivan v. Martin

GOODELL, J.

This is an appeal from an order which admitted to probate as the last will and testament of Viola C. Carr, a document dated January 16, 1935 with a codicil dated September 18, 1937, and which denied probate to a document purporting to be her will dated January 16, 1935 with two codicils, one dated June 18, the other June 19, 1935. The order appointed Judge H. G. Jorgensen executor.

Mrs. Carr died in Monterey on August 4, 1943, at the age of 90 years. She was a widow and had no children. Her heirs at law are two nieces, Adeline W. Kennedy and Alice Kennedy Shallberg, and a nephew, Phillip Sheridan Kennedy.

At the hearing both wills were before the court on petitions for probate after due notice had been given as to both. The one admitted named Carmel Martin and His family as residuary legatees and devisees; the one rejected named Elizabeth Carr Sullivan, a sister-in-law of decedent, as residuary legatee and devisee.

Several years before the hearing a contest of the Martin will had been filed by the three heirs at law and it had not been dismissed. The attorneys who now appear for appellant are also the attorneys for the contestants of the Martin will.

When the hearing opened counsel for appellant asked “for a jury trial on the question as to which is the later will.” The court ruled that the request was too late and proceeded to take testimony respecting decedent’s handwriting and testamentary' capacity, from which a prima facie case was made out that both wills and all three codicils were entirely written, dated and signed by Mrs. Carr, and that she was of sound mind at all the times in question. The court then ordered that the Martin will be admitted to probate and that the Sullivan will be rejected.

The question now presented, as stated by appellant is, “Where a will contest with request for jury trial is instituted

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before probate and before trial thereof a second and conflicting instrument is offered for probate, should the court consolidate the conflicting petitions and will contest into a jury trial?”

The court was confronted with two distinct problems. The Sullivan will was not contested. The question whether it was later than the Martin will was for the court to decide. “There is no right to demand a jury trial in a probate proceeding unless that right is granted by statute . . .”