Caldwell v. Bank of Italy National Trust & Savings Ass'n

WORKS, P. J.

This bis an appeal from an order dismissing a petition to revoke the probate of a will.

The dismissal was ordered on the ground that the petition was filed loo late. Section 1327 of the Code of Civil Procedure, by an amendment which took effect on August 14, 1929 (Stats. 1929, p. 860), allows a contest of a will after probate to be filed within six months after admission to probate. In the present case the decedent departed this life on August 3, 1929, and on August 21st of the same year his will was admitted to probate. The contest here in question was filed on April 7, 1930, more than six months after the will was probated. Under the direct terms of section 1327 it is plain that the filing was too late.

Appellant, however, sets forth several alleged reasons why the limitation prescribed by the statute should not be allowed to apply in the present instance, but we think it so plain that they are not true reasons that we forbear further to discuss them.

Section 1333 of the Code of Civil Procedure provides: “If no person, within one year after the probate of a will, contest the same or the validity thereof, the probate of the will is conclusive; saving to infants and persons of unsound mind, a like period of one year after their respective disabilities are removed.” So the section has stood since 1874. A part of the amendment of section 1327, passed in 1929, was in changing the words “one year”, theretofore in the section, to “six months”. It is contended that section 1333 is a statute of limitation and that it is applicable to the present case. But section 1327 is undoubtedly a statute of limitation, and if section 1333 is to be regarded as such a statute, in form, it is plainly in conflict with 1327 and to the extent of the conflict was repealed by implication by the amendment of the latter in 1929.

Order affirmed.

Craig, J., and Thompson (Ira F.), J., concurred.