Estate of Rodda

WOOD (Fred B.), J.

Estelle Kratz has appealed from a judgment which dismissed her contest of the probate of a will dated October 1, 1954, based upon findings (1) that contestant is not a “person interested” in the estate and (2) that there is no merit to the contest.

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Appellant also gave notice of appeal from a subsequent order which admitted the will of October 1, 1954, to probate.

[302]

We will consider first the finding that contestant is not a “person interested” in the estate. The quoted expression derives from Probate Code, section 370, which declares that any “person interested” may contest a will. Such a person “is one who has an interest of a pecuniary nature which may be impaired or defeated by the probate of the will or benefited by setting it aside,” such as an heir or a legatee under a prior will.

(Estate of Harootenian,

38 Cal.2d 242, 248 [238 P.2d 992]. See also

Estate of Plaut,

27 Cal.2d 424, 425-426 [164 P.2d 765, 162 A.L.R. 837], and

San Diego Trust & Sav. Bank

v.

Heustis,

121 Cal.App. 675, 681 [10 P.2d 158].)

This issue may be tried by the court prior to the trial of the validity of the will which is offered for probate and the court may dismiss the contest if an insufficient showing is made that the contestant is an interested person.

(Estate of Land,

166 Cal. 538 [137 P. 246];

Estate of Sherwood,

123 Cal.App.2d 209 [266 P.2d 580].) In this case as in the Sherwood case the contestant interposed no objection to the determination of this issue in this manner. At the hearing of the motion to dismiss the contest and the motion for summary judgment, contestant agreed to and did submit the motions upon the affidavits and the memoranda of points and authorities on file. In such a ease the function of a reviewing court is to determine whether there is in the affidavits evidence sufficient to support the trial court’s finding that contestant is not a person interested. The same rule obtains as when the trial court’s findings are based upon oral testimony.