Jamison v. Johnson

HANSON, J. pro tem.

Respondent Jamison moves to dismiss the appeal taken by appellants, who below contested the admissibility of the will which was admitted to probate, on the ground that the judgment appealed from is not an appealable order within the meaning of section 1240 of the Probate Code or appealable under any other provision of our statutory law.

Two wills were presented for probate, one dated May 17, 1948, and one dated December 31, 1949. Appellants filed a contest before the probate of either will contending the latter will was invalid. The trial of this contest was held in October, 1950, a jury being waived. Under date of April 25,1951, the trial court signed findings of fact and conclusions of law to the effect that the will was admissible to probate and a judgment based thereon. The appeal is from this judgment. Under the same date the court signed a separate document designated “Order admitting Will to Probate And For Letters Testamentary. ” No appeal was taken from this order, which was filed with the clerk, as were the findings and judgment, on April 26, 1951. All these documents were entered on May 1, 1951.

The theory of the moving party is that the judgment is not an order admitting to probate the will of December 31, 1949, in view of its phraseology and, even if it were, that there must be a separate and distinct subsequent “order” after judgment admitting the will to probate and that such an order alone is appealable under the language of Probate Code, section 1240, which reads: “An appeal may be taken to the supreme court from an

order .

. . admitting a will to probate or revoking the probate thereof.” (Italics supplied.)

It will be observed, as respondent contends, that the statute as we have quoted it does not say that an appeal may be taken

from a

“judgment or order,” but

merely

that an appeal may be taken from an “order admitting a will to probate or revoking the probate thereof.” Nevertheless, for reasons presently to be stated, we are of the view that the word

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