Estate of Newell

STURTEVANT, J.

This is a proceeding to contest a will before probate. The proceeding was heard before the trial court sitting without a jury. The trial court made findings in favor of the proponent and thereafter ordered judgment in accordance therewith. From that judgment the contestant has appealed under section 953a of the Code of Civil Procedure.

The first point made by the appellant is “that no will was before the court as evidence; no will was introduced in evidence; no will was offered in evidence; and no will was even marked for identification. That there is an entire absence of even a

prima facie

case warranting the admission of the will to probate.” The point rests upon

[556]

the fact that the proponent did not formally state that he offered the will in evidence and he did not formally read the will, nevertheless we think that the record is not vulnerable to the attack made by the appellant. The appellant does not call to our attention any objection, motion, or exception showing that the point was in any way called to the attention of the trial court. On the calling of the case the proponent commenced to introduce a

prima facie

case proving his petition for the probate of the will. He called as a witness the proponent and having elicited other jurisdictional facts the attorney for the proponent asked the witness, “Did your father leave a will? A. He did. Q. I will show you this, and ask you if that will is entirely written, dated and signed by the hands of your father? (Showing.) A. The will is written entirely and dated by my father and states it is his only will.” On cross-examination the attorney for the contestant propounded the question, “Now you said in your examination by Mr. Fulwider that when your father made the will he stated that it was his only will and the last handwriting he would ever do. A. That is right. Q. Were you present when he was writing this? A. No, sir, he told me about it the day after he made it. Q. How do you place the time as the day after it was made? A. Because he said, ‘I made my will yesterday before noon and I placed it in the bible, and I want no man to move it, it is in a place where it should be held inviolate until I am dead.’ Q. And is that where you found it? A. Yes, sir. Q. After his death? A. While he was unconscious. Q. You got it before he died, though? A. I got it to make a copy of it, and placed it in the same place it was, so if it was removed I would know what the will was and it would be a protection to me. Q. Then you had a copy of the will before he died? A. Yes after he was unconscious. Q. Where is that copy you made? A. Mr. Fulwider has it. Q. I would like to see that. (Mr. Hall examines paper.) Where did you make this copy? A. I made it on the same desk which contains the book he wrote it on. Q. When did you make this copy? A. Well I made it in the kitchen, or the bedroom which was formerly the kitchen where he laid.” Later the contestant offered the copy in evidence. The court ordered it received and considered read. The copy so received is as follows: