Guay v. Carpenter

VAN DYKE, P. J.

The appeals herein were taken direct to this court. Involving probate matters, they should have been taken direct to the Supreme Court. The error was not noticed by anyone concerned and the appeals were regularly briefed and argued without having been transferred to the Supreme Court. This court rendered its decision and the error was then discovered. Our decision was therefore set aside and the appeals transferred to the Supreme Court. The Supreme Court returned the appeals to this court for decision and they were again calendared for argument and submitted for decision. During the reargument the attention of this court was called to a slight error in the statement of facts contained in our previous opinion which we have now corrected. We are satisfied with the decision heretofore rendered. With the correction in the statement of facts we adopt that opinion as the opinion of the court. That opinion follows as so amended:

Alice Marie Meyer died in Sonoma County, and on September 18, 1947, a will was proposed for probate by the executor therein named. Albert C. Meyer, a son of deceased, contested. Judgment went against him and the document was thereupon admitted as the will of decedent. Thereafter Viola Marie Quay, a daughter of Albert C. Meyer, and also Viola Meyer, his wife, filed contests after probate. In the answers thereto filed by proponents of the will there was set up the special defense that each of said two contestants had actual notice of the preprobate contest in time to have joined therein and that by section 380 of the Probate Code they

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were not qualified to contest after probate. This special defense was first tried. It was determined against contestants, following which judgments were entered dismissing each contest. Viola Meyer Guay and Viola Meyer appeal.

It appears that both appellants knew of the pendency of the preprobate contest shortly before November 3, 1947, when the trial of that contest was begun. On that date and while appellants were in the court room attending the trial a previous will of decedent was introduced in evidence. On the following day Viola Marie Guay testified for Albert C. Meyer and on November 5th her mother also was a witness. There were a number of postponements and the trial was not completed until April 15, 1948, when the court ordered the cause submitted for decision. September 30,1948, the court ordered judgment for the proponents of the will and on October 18th following admitted the will to probate. Within six months thereafter appellants filed their contests, alleging their interests to be that of legatees under the earlier will of decedent which had been introduced in evidence. Each appellant in the petition for revocation of probate alleged that she had no actual notice of the preprobate will contest in time to have joined therein. The court found these allegations to be untrue and affirmatively found that each appellant had had such notice. More specifically the court found as to each appellant that early in the trial of said contest she had knowledge of the fact that there existed a will made by the decedent prior to her making her last will and that she was a beneficiary thereunder.