Brainard v. Brainard

MARKS, J.

This is an appeal from a judgment establishing that Leslie Brainard was the grandson and an heir at law of William Brainard, deceased.

The facts are not in dispute. William Brainard was a widower at the time of his death in December, 1944. He was the father of two sons, T. S. Brainard, who survived him, and Frank R. Brainard who predeceased his father. Leslie Brainard was the only child of Frank R. Brainard.

William Brainard died testate. His will left all of his property to his son T. S. Brainard and to Vera Brainard, his daughter-in-law, wife of T. S. Brainard. No mention of Leslie Brainard was made in the will and there is nothing in the document to indicate that such omission was intentional. The evidence is undisputed that no settlement had been made on Leslie nor is it contended that his grandfather had given him any part of his estate. It is therefore clear that Leslie Brainard was a pretermitted heir and entitled to inherit as such. (Prob. Code, § 90.)

The petition to determine heirship was filed on September 21, 1945. The clerk set the petition for October 2, 1945, and caused notices of the time and place of the hearing to be regularly posted. (Prob. Code, § 1191.) There is nothing in the record to affirmatively indicate that any notice of the hearing was mailed to appellant or to his attorney other than the declaration in the judgment that notice of the time and place of the hearing had been given according to law.

The hearing was had on October 2, 1945, with both appellant and respondent appearing in person and by their respective attorneys. No question of the sufficiency of the petition was raised and no objection was made to proceeding with the hearing. There was no request for a continuance. The parties introduced their evidence and on request of the attorney for appellant the respective counsel were given time to file briefs. The decree was dated November 9, 1945, and "was filed the next day.

[852]

On October 22d counsel for appellant moved to reopen the case. His main purpose was to move to strike out all of the evidence taken at the former hearing on the ground that neither appellant nor his attorney had received written notice of the time and place of the hearing of the petition. The trial judge repeatedly offered to reopen the case to permit the introduction of any evidence on the question of the status of respondent as an heir at law of deceased. The existence of any new evidence was not even suggested and no claim was made that Leslie Brainard was not the grandson of William Brainard and that Frank It. Brainard, the father of Leslie, had not predeceased William Brainard. The motion to reopen the ease was denied and judgment in favor of Leslie was entered.