McCarthy v. Schwerin

MARKS, J.

Three separate appeals have been taken by Francis C. McCarthy and Mayzellia Ann McCarthy from various orders and decrees made in the

Matter of the Estate of Charles E. McCarthy, Deceased.

They are submitted on a single set of briefs and counsel have stipulated that they may be consolidated. As the orders were made by different judges, and for our own convenience, we prefer to decide the appeals separately.

This is an appeal from an order admitting the will of Charles F. McCarthy to probate and appointing Kate A. Schwerin executrix thereof. The notice of appeal also specifies an appeal from an order of May 14, 1936, made by the Honorable Arthur L. Mundo denying the right to hear a petition for probate of a lost or destroyed will. We find no such order in the record. One of the companion appeals is from an order of the Honorable L. N. Turrentine made on June 12, 1936, denying probate of this lost or destroyed will. It is evident that the attempted appeal from this order in this cause is premature and must be dismissed. We will consider that matter on the appeal from the later order of Judge Turrentine.

Charles F. McCarthy and Mayzellia Ann McCarthy were married in 1903. On March 13,1914, she instituted an action for divorce. On February 21, 1917, she was given an interlocutory decree of divorce. On March 8, 1918, she was given a final decree of divorce on motion of her own counsel. She

[391]

recently moved to set aside both decrees, but this motion was denied by the superior court. Its order has just been affirmed on appeal.

(McCarthy

v.

McCarthy, ante,

p. 151 [72 Pac. (2d) 255].) It follows that Mayzellia Ann. McCarthy is not now the widow of deceased.

Charles F. McCarthy died testate on June 27, 1935, in the city of San Diego. He left an holographic will dated April 23, 1924, in his safe deposit box in the Bank of America National Trust and Savings Association. On its discovery the will was filed without petition to probate in the office of the county clerk of San Diego County. This will left decedent’s furniture in San Mateo to his son and bequeathed the balance of his estate equally to Francis C. McCarthy, his son, Mrs. Kate A. Schwerin, his sister, and Charlotte M. Morrow. Mrs. Schwerin was nominated executrix without bonds.