In Re Estate of Nutt

ANGELLOTTI, C. J.

This is a motion to dismiss an appeal taken by W. Ray Simpson, the proponent of an alleged will of 'deceased, from a judgment sustaining the opposition of two heirs of deceased to the probate thereof. One of the grounds of the motion is that the appeal was not taken within sixty days after the entry of judgment.

[1]

But it was taken within thirty days after the entry of an order denying proponent’s attempted motion for a new trial, which was in time if such a proceeding was duly initiated. (Code Civ. Proc., sec. 939.)

[421]

[2]

Under section 663a of the Code of Civil Procedure, the party desiring to initiate such a proceeding must serve on the adverse party and file with the clerk of the court a notice of intention within a time specified. We have held that unless the notice of intention be both served and filed within the specified time there is no initiation of a proceeding on motion for new trial, and no such “proceedings . . . are pending” within the meaning of section 939 of the Code of Civil Procedure

(Whiting-Mead etc. Co.

v.

Bayside Land

Co., 178 Cal. 93, [172 Pac. 598]), with the result that in such a case the right of appeal expires sixty days after the entry of judgment. This ruling was made in a case where there, was no filing of any notice of intention within the specified time, with the result that there was no initiation of a proceeding on motion for new trial as to any adverse party.

[3]

The situation here is different. The point in the case at bar is that no such proceeding was initiated for the reason that the notice of intention was never served on one Ann Nutt Baker, claimed to be an adverse party. The facts in this connection are as follows: There were two alleged wills of deceased, one dated August 17, 1917, and the other dated September 24, 1917. Both have been filed for probate and opposition to probate presented, as to each, Ann Nutt Baker contesting both wills, and Martha Nutt and David Nutt, beneficiaries under the earlier will, contesting the will of September 24th. As to the will of September 24th, offered for probate by one W. Bay Simpsonj the sole beneficiary thereunder, the contest of Martha Nutt and David Nutt was on the ground of fraud and undue influence, while that of Ann Nutt Baker was on the ground of incompetency to make a will. The question of the admission to probate of the alleged will of September 24th being before the court and the two oppositions to such admission pending, for some reason the court proceeded with a trial of the issues presented by the opposition of hSartha and David Nutt only, the opposition of Ann Nutt Baker being postponed to await the determination of the other opposition. This trial resulted in a verdict for the contestants, with a consequent judgment declaring the will of September 24th to be “null and void.” This is the judgment attempted to be appealed from.