Estate of Percival

California Court of Appeal Jan 16, 1956 No. Civ. No. 8678Published

Before: Peek

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Holding. The trial court abused its discretion by denying the petitioners' motion for a new trial after it introduced a second will into the proceedings and construed it with the first, thereby preventing the petitioners from presenting evidence to rebut the application of the doctrine of dependent relative revocation.

Issues

Whether the trial court abused its discretion by denying a motion for a new trial after considering evidence not previously before the court.
Whether the petitioners were entitled to present evidence to rebut the application of the doctrine of dependent relative revocation.

Disposition. reversed

Quotations verified verbatim against the opinion

“the order of the court denying petitioners' motion for a new trial was an abuse of discretion.”

“to deny the motion was to prevent a full and fair trial of the sons' petition.”

“the proffered evidence which they sought to introduce could have taken the case completely out of the dependent relative revocation rule”

138 Cal.App.2d 494 (1956) Estate of JOHN C. PERCIVAL, Deceased. DANIEL D. KINLEY et al., Appellants,

GERALD D. GLENN, as Executor, etc., Respondent.

Civ. No. 8678. California Court of Appeals. Third Dist.

Jan. 16, 1956. Cecil J. Bishop and Chester Gannon for Appellants.

Richard J. Lawrence for Respondent.

PEEK, J.

This is an appeal by John Cary Kinley and Daniel D. Kinley, the sons and sole surviving heirs of decedent, from an order of the trial court determining that they were not entitled to succeed to any portion of the estate of decedent.

On March 17, 1952, Gerald D. Glenn, as executor, filed his petition for probate of the will of decedent dated November 30, 1951. The will, after the customary paragraphs relative to soundness of mind, lack of undue influence or fraud and revocation of all former wills, provided that Glenn who was named as executor to serve without bond, was to receive all of the property of which the testator died possessed; and that the testator's body was to be cremated. Article 5 of the will provided:

"If any person should assert a claim to my estate or any part thereof, other than the devisee named, or should institute any contest to this will, then to such person or persons I bequeath the sum of One Dollar and no more."

Following the order admitting the will to probate, the two sons filed their petition for distribution of the estate to themselves as pretermitted heirs. On April 7, 1953, a hearing was had on said petition. The minute order entered at the conclusion thereof states in part that witnesses were sworn and documentary evidence was introduced. Specifically referred to were two exhibits of petitioners which were not admitted in evidence but were marked 1 and 2 for identification. The order then states "... the hearing on said petition at this time be continued generally."

On June 25, 1953, and prior to either a further hearing or order of the court pursuant to the April 7 order, Glenn as executor filed a petition for probate of a prior will dated March 19, 1951. This will, after making the same introductory statements and the same dispositive provisions to Glenn as those contained in the November will, provided in article 5, "I purposely refrain from making any bequests to my sons, Daniel D. Kinley of Cincinnati, Ohio, and John C. Kinley of Houston, Texas, for reasons good and sufficient unto myself." The will also contained an identical provision as to contest but made no mention concerning cremation of the testator's body. On March 11, 1954, the court entered its findings and

Estate of Percival

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PEEK, J.

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