Estate of Lorenz

KAUFMAN, J.

This is an appeal from a judgment of the Superior Court of San Mateo County denying the petition of appellant Roy P. Newell for the revocation after probate of the will of William H. N. Lorenz, deceased.

The testator, William H. N. Lorenz, was also known as William H. Newell, III. He was the son of appellant, and was killed in action in Korea on October 19, 1952, while serving as a lieutenant in the United States Air Force. Testator was born on February 2, 1925. When he was 3 years of age his mother obtained a final decree of divorce from appellant, by which custody and control of testator and three other minor children of the couple was given to the mother. There was testimony that after the divorce the couple still lived together until the wife’s death. Testator’s mother died on April 17, 1931, when he was 6. years of age, and from that time on testator lived in respondents’ home.

Subsequent to the death of testator’s mother, a Dr. Morrison was appointed guardian of testator. He later resigned, and on October 9, 1933, Dr. Frank D. Lorenz was appointed guardian by order of the Superior Court in and for the County of San Mateo, and said respondent continued as guardian until testator attained his majority.

While at Camp Stoneman, California, prior to going overseas testator executed the last will here in question. Neither of respondents was present at the time. Testator bequeathed all of his estate to his guardian, respondent Dr. Lorenz, and made no reference to, nor any provision for, appellant or any other relative.

Two of the three attesting witnesses, Sergeant Dyer and Sergeant Rucinski, testified at the hearing of July 17, 1954, after which the will was admitted to probate. They stated that they did not know where the third attesting witness, Corporal Schroeder, was at that time. Counsel for appellant appeared at that hearing, examined witnesses, and argued against the admission of the will to probate, but did not file a formal contest before probate. The will was admitted to

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probate on August 7, 1953. . No motion for a new trial was made nor was there any appeal taken from this order.

On January 21, 1954, appellant filed a petition for revocation of will on the grounds that the fraud of respondents vitiated the will, and that it was not executed as required by the Probate Code. Following a trial of the matter before the court, at which the testimony on the hearing prior to admission of the will to probate was admitted by stipulation, the court entered judgment denying the petition.