Mooney v. Superior Court of County of Kern

ANGELLOTTI, C. J.

The object of this proceeding is to obtain a writ of prohibition restraining respondents from further proceeding in the matter of a contest of a will instituted in the superior court of Kern County. An alternative writ was issued. The matter was submitted for decision upon the petition and an answer which admitted the truth of most of the allegations of the petition. There is no dispute as to any of the material facts.

Mary O’Donnell died July 6, 1909, leaving estate and a purported will. By the terms of this will, Margaret Mc-Nally, who had married Edward Mooney, was the sole beneficiary and executrix. The will was filed for probate. On July 23, 1909, the surviving husband of deceased, Edward O’Donnell filed his opposition to the probate of the will. On September 30, 1912, while the contest thus instituted was pending undetermined, said Edward O’Donnell died testate. On October 21? 1912, his wife, Elizabeth O’Donnell, was appointed executrix of his will and letters testamentary were issued to her thereon. On October 28. 1912, Margaret Mooney gave to said Elizabeth O’Donnell,

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as executrix of the will of said Edward O’Donnell, and her attorneys, notice of a motion to be made for the dismissal of the written opposition and contest to the probate of the will of Mary O’Donnell, on the ground, substantially, that the contestant having died, the contest abated. In response to this notice, Elizabeth O’Donnell, as executrix of the will of Edward 0 ’Donnell, appeared at the hearing of the motion and opposed the granting of the same on the merits. The matter was fully heard, and submitted for decision, and on February 27, 1913, an order was made and entered granting the motion and dismissing the contest. No appeal was ever taken from this judgment of dismissal. There was never any formal substitution in the contest proceeding of any party in place of the deceased Edward O’Donnell. On March 19, 1913, after due and legal notice, an order was made admitting the Mary O’Donnell will to probate and appointing Margaret Mooney executrix thereof, and letters testamentary were issued to her. No valid appeal was ever perfected from this order. Margaret Mooney, as executrix, proceeded with the administration of the estate of Mary O’Donnell, with the result that on July 12, 1915, her accounts as executrix were finally settled and a decree of final distribution made, distributing to Margaret Mooney all of the residue of the estate, of all of which she was thenceforth possessed to the time of her death, September 19, 1917. No appeal was ever taken from this decree. On April 24, 1916, over three years after such judgment of dismissal had been made and entered, Elizabeth O’Donnell, as executrix of the will of Edward O’Donnell, deceased, gave notice of a motion for an order vacating the judgment of dismissal of the contest of the will of Mary O’Donnell, and for an order substituting her as such executrix in place of Edward O’Donnell as contestant. The ground of the motion was that at the time of the judgment of dismissal the contestant was dead and neither she nor anyone else had been substituted in his place, and that, consequently, such judgment of dismissal was a nullity, with the result that the contest was still pending undetermined. This motion came regularly on for hearing, and on August. 8, 1916, an order was made granting the motion- and purporting to vacate the judgment of dismissal, to substitute said Elizabeth O’Donnell, as executrix, as contestant, and to allow her to prosecute such contest.