Burtnette v. Owen

California Court of Appeal May 19, 1937 No. Civ. 10407Published

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Holding. A will contest filed within the statutory period by an interested party inures to the benefit of an interested party who intervenes after the statutory period, and the statute of limitations is not a defense to such a petition.

Issues

Whether a petition in intervention filed after the statutory period for contesting a will is barred by the statute of limitations when the original contest was timely filed.
Whether an allegation of being the 'sole heir' in a petition in intervention constitutes a fatal admission or surplusage for pleading purposes.

Disposition. Reversed

Quotations verified verbatim against the opinion

“it appears from decisions from other jurisdictions that a contest filed within the statutory time enures to the benefit of an interested party who intervenes after the statutory period, and that the statute of limitations is not a defense”

“As between the two lines of decisions we prefer to follow what seems to be the more liberal rule declared by the Kansas and Ohio courts.”

“the demurrers to the complaint or petition, we think the same should have been overruled, and that upon the filing of respondents’ answers thereto the question whether contestants are interested persons should first be determined.”

THE COURT.

Appeal from a final judgment entered against appellant Kate G. Burtnette following an order sustaining demurrers to, and dismissing, her petition in intervention, and an order striking out her answer to a contest filed by Elizabeth A. Ennis, of the alleged will of the decedent above named.

The will was admitted to probate on December 31, 1934, and the Ennis contest was filed March 11, 1935, within the six months’ period specified in the statute. (Probate Code, sec. 380.) Appellant obtained leave of the court and her pleadings were filed on August 8, 1935,0over seven months after the probate of the will.

[98]

Contestant Ennis alleged herself to be decedent’s cousin and sole heir at law; that the purported will was not executed by decedent, and facts which, if true, would establish that the formalities necessary to constitute the same a valid will were not complied with; further, that decedent was not at the time of sound and disposing mind and that the alleged execution of the document was procured by undue influence. Appellant, by her petition or complaint, sought to join in the contest. She also alleged substantially the same grounds of contest as those contained in the Ennis pleading. As grounds for her right to join in the contest she alleged herself to be decedent’s cousin, next of kin and sole heir at law. Substantially the same allegations were contained in her answer to the Ennis pleading. The executor of the purported will and one Alice Seckels, named as a legatee and devisee therein, moved to strike appellant’s answer on the ground that the same was sham and irrelevant; they also filed separate demurrers to her petition in intervention on general grounds, and pleaded further that the several grounds of contest therein were barred by the provisions of sections 380 and 381 of the Probate Code. As stated, the trial court granted the motions and sustained the demurrers.

The question does not appear to have been decided in this state; and it appears from decisions from other jurisdictions that a contest filed within the statutory time enures to the benefit of an interested party who intervenes after the statutory period, and that the statute of limitations is not a defense to such a petition.

(Maurer

Burtnette v. Owen

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THE COURT.

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