Hart v. Gudger

FOURT, J.

This is an appeal by the plaintiff from a judgment entered by the trial court after having sustained, without leave to amend, the separate demurrers of defendants Francis Gudger, the executor of the last will and testament of

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William S. Hart, deceased, and the county of Los Angeles (the principal and residuary legatee under said will) to the plaintiff’s third amended complaint.

In January, 1947, the appellant instituted a contest of the probate of the will of his father, William S. Hart, Sr. He was unsuccessful in that litigation and judgment went against him. By the third amended complaint in the matter now before us the appellant sought to state a cause of action to vacate and set aside the previous judgment of the superior court in the will contest in his father’s estate

(Estate of Hart

(1951), 107 Cal.App.2d 60 [236 P.2d 884], wherein he alleged, among other things as grounds for the contest, both duress and undue influence) upon the ground that the judgment in the will contest was procured by the perpetration of an extrinsic fraud.

The learned trial judge prepared an exhaustive and carefully written memorandum on sustaining the general demurrers, which we adopt as a part of this opinion and which reads as follows:

“General demurrers are urged against the Third Amended Complaint to set aside a judgment against plaintiff, contesting the will of his father, William S. Hart. The verdict and judgment sustained the validity of the will, against his objections, and has long since become final.

“To upset this final judgment, plaintiff contends that evidence material to the contest—the ‘last page’ of his aunt’s will—was fraudulently suppressed by the defendants or some of them.

“Facts must be alleged—not conclusions given—showing a different judgment would have resulted in the will contest had the alleged fraud not

occurred;

or, as is stated in other eases, that he has ‘a sufficiently meritorious claim to entitle him to a trial of the issue’ upon the allegations made. There must be reasonable certainty that plaintiff would have emerged in a more advantageous position.