McKenna v. Superior Court

CURTIS, J.

J. H. Smith, a resident of the county of Los Angeles, died on August 9, 1925, leaving real and personal property therein. On May 6, 1926, after proceedings duly had, a document purporting to be the last will and testament of said deceased and dated July 26, 1924, was admitted to probate as his last will and testament. In this will J. Truitt (now J. Truitt Bustemante) and Annie Dupea were named as devisees. An unsuccessful attempt had been made to set aside said will by a contest instituted by the children of said deceased. On October 26, 1928, petitioner, Catherine A. McKenna, filed a petition to probate a document purporting to be an olographic will of said deceased. This document was dated September 22, 1924. On November 20, 1928, said Bustemante and Dupea filed a

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contest and objections to the probate of said olographic will. The result of this proceeding was that the court before which said proceeding was pending, on February 8, 1929, revoked the order admitting to probate the first will, and further ordered that the document filed by the petitioner, Catherine A. McKenna, be admitted to probate as the last will and testament of said deceased, and ordered letters testamentary to issue to the said petitioner, and said letters were issued as ordered on February 9, 1929. Following this order admitting the olographic will to probate a number of motions and orders were made in the matter of said estate and in the following order. On April 24, 1929, on the motion of the contestants, Bustemante and Dupea, the court set aside the order of February 8, 1929, admitting to probate the olographic will. On November 19,1929, the court, on the motion of the proponent, Catherine A. McKenna, vacated the order of April 24, 1929, and restored all orders made on February 8, 1929, including the order admitting to probate the olographic will.

The proceedings were in this condition when the contestants on February 7, 1930, being just one year from the date of the order admitting the olographic will to probate, filed a contest of the olographic will. On March 3, 1930, the court struck out this contest. No appeal was taken from this order or from any of the orders made by the court involving the probate of said olographic will.

On May 14, 1930, over fifteen months after the date of the order admitting the olographic will to probate, the contestants filed a second contest to the probate of said will. A motion was made by the proponent to strike out this contest, but the court denied said motion and fixed a date for the hearing of said contest. Whereupon the petitioner instituted this proceeding for a writ of prohibition directed to said superior court to refrain from hearing said contest.