Estate of Bartholomae

McGOLDRICK, J. pro tern.

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Petitioners appeal from the following orders of the superior court: (1) denial of their motion for a directed verdict, (2) granting respondent’s motion for a general mistrial, and (3) order setting aside and declaring void the special verdicts of the jury.

These orders arise out of a contest of a will before probate. Charles A. Bartholomae died testate on November 22, 1964; he was a resident of Orange County. A petition for the probate of his last will and testament was filed on December 17, 1964 by Security First National Bank and Paul Caruso, coexeeutors. The names of the devisees and legatees in the will are as follows: Carmela M. Bartholomae, the deceednt’s wife; Carlos Bartholomae, the decedent’s son; and Cita Arena, the decedent’s daughter of a former marriage.

Cita Arena was disinherited under the terms of the will, the testator leaving her the nominal sum of $1. Written objections to the will were filed by Cita Arena on January 28, 1965.

[841]

The grounds of contest were: (1) improper execution, (2) fraud, (3) undue influence, and (4) insane delusions.

Midway through the trial respondent abandoned her claim that the will was improperly executed. The jury returned special verdicts that the will was not executed or published as the result of fraud or undue influence; no conclusion was reached by the jury on the issue of insane delusions. A judgment was not entered upon the verdicts. Respondent moved for a general mistrial and a vacation of the special verdicts on the grounds that the jury's findings were incomplete. The appellants moved for a directed verdict. On April 13, 1967, the court denied the motion for a directed verdict and granted the motion for a mistrial and set aside and declared void the special verdicts returned by the jury. As we stated at the outset, it is from the aforementioned orders that petitioners appeal.

It is respondent’s contention that the orders are not appealable. It is our view that this position is correct for the following reasons. No appeal lies from a verdict in a will contest, nor from orders denying a new trial, a nonsuit, a directed verdict, and a judgment notwithstanding the verdict, these not being among the appealable orders mentioned in Probate Code, section 1240;