State v. Dalecsic

THE COURT.

Barney McCabe died in the city and county of San Francisco on October 21, 1931. On November 12, 1931, two documents were admitted to probate as the last will and testament of said decedent. On April 28, 1932, the State of California, through its attorney-general, filed a contest of said documents on the ground that they did not in fact constitute a will nor, if they did, were they executed as required by the law of wills. The contest further alleged that decedent died without heirs at law and moreover, that one Frank Dalecsic, named in said documents, was not a son or heir at law of said decedent. Finally, it was alleged that the state was the only person or entity entitled to receive said estate.

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A general demurrer, and also a special demurrer, was interposed by said Frank Dalecsic and by the court sustained. The special ground of demurrer was that the state had failed to allege facts and circumstances which showed its interest in said estate and its right to appear in said proceeding by contest of the will. Ten days were allowed the contestant to amend its petition. Within that period it filed an amended petition, which in all essential particulars was identical with the original one. Thereupon, respondent moved the court to strike said amended petition from the files and also prayed for judgment on his demurrer to the original petition. This motion was granted and judgment in favor of respondent Frank Dalecsic, followed on November 28, 1932, which judgment also ordered said petition stricken from the files. Said contestant thereupon appealed.

The allegations of the amended petition as to the absence of heirs at law, were as follows: “That Frank Dalecsic and/or John W. Davis is not the son, illegitimate or otherwise, of the decedent, and in this connection contestant alleges that the decedent left no will and left no relative or heirs surviving him at the time of his death . . . there is no person, firm, corporation or individual entitled to succeed to the estate of the decedent or to any part thereof, save and except the contestant, State of California . . . that said State of California is a party in interest in said estate and is entitled to receive the same by direct distribution thereof, and that said estate is about to and should escheat to the State of California.”

These allegations were sufficient to show the interest of the state and also sufficient to show the facts and circumstances of such interest (sees. 1269, 1269a, Code Civ. Proc.). They do not allege a mere conclusion of law. In