Reid v. Mehrmann

MELVIN, J.

This is an appeal from an order denying the motion of appellants to strike from the records of the probate court the alleged and purported last will and testament of the deceased. It appears that in 1910 appellants filed in the superior court a contest of the will of John G. Ryan, deceased, and a . petition for the revocation of the probate thereof. Respondent, Mehrmann, answered, a trial was had upon issue joined, and a judgment and decree was entered in favor of the said Mehrmann finding, among other things, “that said instrument contains the matters and things required by law to be contained and set forth in last wills.” Subsequently an appeal was taken by these appellants to this court, and the judgment of -the superior court had become final before the present motion was made. The sole contention of appellants is that the purported will is not in reality a will at all and disposes of no property. But this is a question which we need not discuss, because in our opinion the judgment and decree is invulnerable to collateral attack such as that which appellants seek to make

[599]

in this proceeding. The superior court, at the time it made the order admitting the will to probate, not only had the instrument before it, but also had the advantage of parol evidence as to the attending circumstances connected with its execution.

(Mitchell

v.

Donohue,

100 Cal. 202, [38 Am. St. Rep. 279, 34 Pac. 614].) But aside from this fact it is the rule in California that a judgment admitting a will to probate is a judgment

in rem

and may not be thus collaterally attacked.

(Matter of the Will of Warfield,

22 Cal. 51;

Rogers

v.

King,

22 Cal. 72;

Estate of Twombley,