Estate of Dougherty

NOURSE, P. J.

This motion to dismiss the appeal is made on the ground that appellant has failed to properly procure the filing Of the record on appeal. The county clerk’s certificate shows that the action was

a

contest of a will on the ground that the decedent lacked testamentary capacity. Pertinent dates are: July 20, 1949: Verdict of the jury that decedent was of sound mind at the time of making Ms will. July 26, 1949: Judgment that contestant (appellant herein) take nothing against defendants (respondents herein). October 15, 1949: Written notice of appeal from the judgment of July 26, 1949, was filed. October 25, 1949: Appellant filed notice to prepare reporter’s and clerk’s transcripts. November 21, 1949: Clerk’s notice of the mailing of the estimate of costs filed. December 2, 1949: Reporter filed waiver of deposit of fees.

The clerk’s certificate further discloses that: “No stipulation to prepare an agreed statement or Notice of Intention to Propose a Settled Statement has been filed to the date hereof (November 27, 1950), and no proposed narrative statement has been filed to the date hereof, and there has been no order extending time for the preparation of the record filed to the date hereof,” and that, “The record on Appeal has not been certified to the date hereof by reason of the fact that neither the Reporter’s Transcript on Appeal nor the Clerk’s Transcript on Appeal have been completed, and there is no proceeding pending in the Superior Court for the preparation of the record on appeal.”

The affidavit of Bruce Walkup, attorney for one of the respondents, discloses that inquiries made by Dan L. Garrett and attorneys for the other respondent from January to July, 1950, disclosed that little progress was being made to complete the record on appeal; that he called on the reporter on November 14, 1950, and was informed that the reporter was working on the records and that since the reporter had received a check from the appellant that the work would go much faster; and affiant Walkup further alleges, upon information and belief, that the dilatory action of appellant in preparing the record for appeal is for the purpose of depleting

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the estate by receipt of a monthly family allowance, which has amounted to date to $16,900, and is continuing currently at the rate of $350 per month.