Estate of Butts

LANGDON, J.

This is an appeal by the proponent and beneficiary under the will of Florence Belmont Butts, deceased, from a judgment and order refusing probate to the will, and also an .appeal from an order made after judgment denying the motion of proponent to enter judgment in his favor notwithstanding the verdict.

The original contest pleaded unsoundness of mind, lack of due execution, and undue influence. The defendant answered this original contest by traversing the same and also by setting forth an affirmative defense to the effect that at the date the will was executed the contestant had repudiated his marriage to the decedent and had brought an action to annul it as a cross-complaint to her action against him for divorce on the ground of extreme cruelty; that the parties were separated and bitterly antagonistic at the time the will was made; that the decedent and the contestant were joint tenants at the time the will was made of a fractional interest in a parcel of real property known as the Butts ranch, which, in the event of the death of the decedent before the contestant, would vest by operation of law in the contestant; that the entire estate the decedent had at the time of making the will consisted of some jewelry of the valué of $200 and a judgment for alimony against the contestant amounting to $450.

It appears that the original contest was filed on August 1, 1925, and the answer was filed on August 11, 1925. On the latter date, which was the date of trial, an amended contest was filed which contained the allegation that the contestant had duly married the decedent

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in 1920 and that he remained her husband until the time of her death. The said amended contest then restated the counts of unsoundness of mind, lack of due execution, and undue influence at the time of making the will, substantially as they appeared in the original contest, and then added a new cause of contest, to wit, that the will was revoked by its destruction on the twenty-ninth day of June, 1925, by decedent, with intent and purpose on her part then and there to revoke, cancel, and destroy said alleged will. Defendant objected to the filing of this amended contest, which was, nevertheless, allowed by the court. Appellant contends that because no answer was filed to this amended contest, the cause was never at issue, and that the court erred in permitting the amended contest to be filed. Appellant does not contend that he was surprised or placed at any disadvantage by the filing of the amendment. On the contrary, it appears that he had taken and filed seven depositions relating to the tearing of the will by decedent. He asked for no continuance for the purpose of securing evidence upon this issue, nor to file an answer to the amended contest, but proceeded to trial. The evidence was directed to two issues, namely, undue influence and the revocation of the will by the decedent on June 29, 1925. The contestant introduced evidence of said revocation and that at said time said decedent was of sound mind. The proponent introduced seven depositions all to the effect that decedent was not of sound mind on said date, and in addition to that introduced the order of commitment of the superior court in and for the county of Los Angeles, committing said decedent to the asylum. The contestant offered evidence of the revocation of the will on June 29, 1925, and no objection was made to the introduction of the same.