Estate of Plaut

27 Cal.2d 424 (1945) Estate of LOUIS PLAUT, Deceased. NAN LOW, a Minor, etc., Appellant,

v.

SYLVIA PLAUT LOW et al., Respondents.

L. A. No. 19038. Supreme Court of California. In Bank.

Dec. 18, 1945. Roth & Brannen and David H. Paltun for Appellant.

Julius V. Patrosso for Respondents.

Musick, Burrell & Ingebretsen, Lawrence Livingston, H. W. S. Leeker, Albert Mosher and Anson B. Jackson, Jr., as Amici Curiae on behalf of Respondents.

TRAYNOR, J.

Louis Plaut died testate at the age of 80 years. Surviving him were a daughter, his only heir at law, and her son and daughter. Two months before his death he added a codicil to his will giving his nurse, respondent herein, $15,000. After the admission to probate of the will and codicil, testator's granddaughter filed a petition praying that the probate of the codicil be revoked on the ground of undue influence. The probate court sustained respondent's demurrer to the petition on the ground that petitioner was not an interested person within the meaning of section 380 of the Probate Code and was therefore not entitled to contest the codicil. The petition was dismissed and petitioner appeals.

[1] Only an interested person may contest a will, either before or after probate. (Prob. Code, 370, 380.) It is settled that an interested person is one who has "such an interest as may be impaired or defeated by the probate of the [426] will, or benefited by setting it aside" (Estate of Land, 166 Cal. 538 [137 P. 246]; see 26 Cal.Jur. 1081); and that the court may require proof of the contestant's interest before proceeding with the trial of the contest. (Estate of Edelman, 148 Cal. 233 [82 P. 962, 113 Am.St.Rep. 231]; Estate of Wickersham, 153 Cal. 603 [96 P. 311]; Estate of Land, supra.)

Petitioner contends that she is entitled to contest the codicil on the ground that she is a residuary legatee under the will and that her interest as such legatee would be impaired by the payment of respondent's legacy. The residuary provisions under which petitioner claims to have an interest are as follows: "X: All the rest of my property ... I devise, bequeath and appoint unto my trustees ... 4: To hold ... in trust ... and to pay the net income thereon quarterly to my daughter Sylvia Plaut Low, for and during the term of her natural life; and up her death to pay, transfer, set over and convey the corpus thereof to such one or more of her issue, in such estates and upon such trusts as she shall by last will and testament or any codicil thereto in writing appoint; and in default of appointment, to divide the same among her issue, equally, per stirpes and not per capita. In the event, however, that my daughter shall survive all of her issue, so that there shall not be any of her issue living, although she still is alive, then and in that event, anything hereinabove to the contrary notwithstanding, the trust shall terminate and my said daughter be entitled outright to all of the trust estate ... 5: In the event that the issue of my daughter shall take in default of appointment, then my trustees shall during the minority of such issue continue to hold the corpus of any such issue and apply the income thereof to the support, maintenance and education of such issue during his or her minority, and shall not pay any part thereof to any guardian of such issue, and pay the corpus of such share to such issue on such issue attaining the age of twenty-one years, unless such issue shall have been born in my lifetime, in which event my trustees shall continue to hold the share of the corpus of my estate going to each of such issue, in trust, until such issue born in my lifetime shall respectively attain the age of twenty-five years, and pay quarterly the income thereon to such issue, and upon such issue respectively attaining the age of twenty-five years, my trustees shall pay, transfer and set over to such issue respectively one-half of the corpus then held in trust for him or her, and shall continue to hold the other half in trust until