Hauser v. Stoddard

SHENK, J.

This is an appeal from a decree of distribution by which the entire estate was distributed to the heirs at law of the decedent.

The appellant E. T. Stoddard is not an heir but claims a share in the estate under the terms of a document claimed to be the will of the decedent and admitted to probate on

[648]

May 27, 1932. Within due time W. J. Linstead, a brother of the decedent, filed a contest of the purported will on the ground of forgery. A trial of the contest resulted in a judgment setting aside the order admitting the document to probate and revoking the order appointing an administratrix with the will annexed. The appellant herein was a party to that contest. As the sole appellant he took an appeal from the judgment revoking the probate. That judgment was affirmed by this court on September 3, 1935

(Estate of Golden,

4 Cal. (2d) 300 [48 Pac. (2d) 962]), and became final long before the entry in February, 1936, of the decree from which the present appeal was taken.

The heirs at law of the decedent other than W. J. Linstead, the contestant in the former proceeding, were Ed Linstead, Frank Linstead and Margaret Holt Plauser. All were named as parties to the contest of the will, but Ed and Frank were nonresidénts, were not served with citation, and did not formally appear therein.

It appears to be the contention of the appellant that since Ed and Frank were not served with process and did not appear in the contest proceeding, they are bound by the order admitting the will to probate and are not in position to benefit by the judgment revoking it. Therefore, it is argued, the appellant is entitled on distribution to that portion of the share of Ed and Frank which would have come to him if the contest had not been instituted. In other words, the appellant insists that the contest of the will was a proceeding

inter partes

only and that the failure of Ed and Frank to join in the contest of the will rendered the order admitting it to probate binding upon them.

A will contest possesses some of the attributes of a civil suit, but it is essentially a probate proceeding.