Sheppard v. Kendall

McFARLAND, J.

On February 1, 1904, the probate court made an order admitting a certain written instrument to probate as the last will of Joseph Sheppard, deceased. After-wards, on December 5, 1904,—within the year allowed by section 1327 of the Code of Civil Procedure for contesting a will which had been probated,—Lafayette Sheppard, claiming to be son and heir at law of said deceased, filed a petition for

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the revocation of the said probate of said will. The executors and other interested parties answered the petition; and the matter coming on regularly to be heard by the court on May 23, 1905, the defendants moved the court for judgment on the pleadings that the proceeding for the revocation of the probate be dismissed; and after due hearing the court made an order granting the motion and dismissing the petition. From this order this present appeal is taken by said Lafayette.

The order appealed from was granted upon the ground that the said petition does not state facts sufficient to constitute a cause of action, or any ground for the revocation of the said probate of the will. The only averments in the petition of grounds for the revocation are as follows: “Your petitioner alleges that the making, signing and publishing of said paper purporting to be the last will and testament and codicil thereto, of the said Joseph Sheppard, deceased, was procured through the undue influence, prejudice and imposition from and by Isabel Sheppard, the stepmother of petitioner, and from and by Mrs. E. C. Reed, one of the many relatives of the said stepmother who were not related to decedent, but who are beneficiaries and legatees under said alleged last will.

“That the said Mrs. E. C. Reed, on the death of petitioner’s said stepmother, continued and repeated the said undue influences, prejudices and impositions, and made use of her confidential relations with the said Joseph Sheppard, as his constant companion and professional nurse, during a long period to and at the time of making said alleged will, when the mind of said Joseph Sheppard was weak and enfeebled from the infirmities of age and disease, to repeat and continue to prejudice and unduly influence the said Joseph Sheppard against your petitioner, and to unduly and unjustly influence the said decedent in making and executing the said alleged will, and by such prejudice and undue influence did procure the making of said alleged will and codicil.”