Mallarino v. Superior Court

NOURSE, P. J.

Petitioners allege they are beneficiaries under the will of George Anthony Kearns, who left all his estate to his fiancée Emma Traung Hammersmith and made her executrix of Ms will, but in a separate provision directed her to provide for the petitioners, his nieces. The executrix petitioned the superior court for instructions as .to the interpretation of this provision. That court held that the words were precatory. On appeal this court held them to be mandatory. The Supreme Court took over and held that the clause was of uncertain meaning and that the superior court had erred in refusing to hear extrinsic evidence of circumstances which could clarify testator’s intention.

(Estate of Kearns,

36 Cal.2d 531 [225 P.2d 218].)

When the case went back to the superior court petitioners moved to set it on the jury calendar, which motion was denied

[783]

on July 23, 1952. On September 11, 1952, petitioners filed a petition to Determine Interest in Estate, and asked a jury trial to which, they were entitled under the express provision of section 1081, Probate Code. On September 25, 1952, the attorney for the executrix applied for the placing of the original matter, remanded by the Supreme Court, for trial on October 2, 1952, without notifying petitioners. The matter was placed on the calendar for said date.

Petitioners wish to have this trial prohibited as an unnecessary duplication of the trial of their petition to determine their interest in the estate, which petition, they contend, has made the petition for instruction of the executrix moot, and because the court has no jurisdiction to set the case for trial and to proceed without notification of petitioners.

Petitioners contend that also in the remanded proceeding for instruction they were entitled to a jury trial because triable issues of fact were presented. The right to jury trial in probate matters when there is no specific provision granting the right expressly for that special proceeding, depends on whether there is statutory authority for the formation of triable issues of fact in the particular proceeding.

(Budde