Estate of Eskridge

HANSON, J. pro tem.

The sole question is whether a legatee in a will seeking a revocation of its probate is required to allege in her petition the facts showing her legal rights are adversely affected by the will, or whether this is sufficiently

[635]

shown by an allegation that she is a niece of the testatrix. The trial court held that she had to allege the ultimate facts in her petition, and for failure to do so sustained the demurrer of the executor. Appellant elected to stand on her petition and so refused to amend. We think the ruling of the trial court was correct.

In her written petition for revocation of the probate of the will appellant averred she was a niece of the testatrix and that by the will in question she was bequeathed the sum of one dollar. If the will was invalid and the decedent died intestate, appellant was an heir at law under our statute only if she was more closely related than, or equally related with, such other relatives as survived the decedent. In short, she had no standing to contest the probate of the alleged will if the testatrix, as claimed, had issue surviving her, as they would succeed to the estate on intestacy to the exclusion of decedent’s niece. (Prob. Code, § 222.) Hence, in the absence of any other will providing more adequately for her than the will in question, appellant stood to receive less, not more, by a contest. This is not an interest of sufficient substantiality to permit of a contest—taking the time of the courts for no purpose at all.

(Estate of Land,

166 Cal. 538 [137 Pac. 246].)

While appellant apparently recognizes that this is so, she nevertheless argues that she is entitled to submit evidence of her interest to the trial court for its decision, without alleging specifically facts which if proved would permit her to contest the will. She cites no authority that sustains her contention and we know of none. In this state authority is to the contrary

(State

v.

Superior Court,

148 Cal. 55 [82 Pac. 672, 2 L.R.A. (N.S.) 643]), and apparently this is true everywhere. (117 A.L.R. 1455.) The ease of