Hardiman v. Church

ANGELLOTTI, C. J.

This is a proceeding in mandate to compel the settlement of a bill of exceptions for use on an appeal from a judgment or order of the superior court of Alameda County admitting to probate the will of one Jane O’Neill. The will was contested, petitioners here, who were heirs of deceased, being the contestants, the grounds of contest stated in the written opposition to probate filed being, first, want of jurisdiction of the superior court of Alameda County for the reason that deceased was not a resident of that county at the time of her death; second, incompeteney of deceased to make a will; third, want of proper execution, and fourth, undue influence.

[1]

The first ground stated was not a proper ground of

contest of the will

(Code Civ. Proc., sec. 1312), but the contestants did have the right to object to the jurisdiction of the court to entertain the application for probate on that ground, and the statement in the opposition to probate filed of the alleged facts in this regard constituted such an objection. Answer to the opposition was filed by the proponent of the will, and, a trial having been had, judgment was given admitting the will to probate. Within the time prescribed by law therefor the contestants duly initiated a proceeding on motion for a new trial of the contest, the grounds therefor

[587]

specified therein being limited, however, to the issue of the residence of the deceased at the time of her death, and the matter of the jurisdiction of the superior court of Alameda County, dependent on the residence of deceased in said county at such time, to admit said will to probate, or to hear said contest. The motion for a new trial was denied on November 15, 1919, the order of denial being entered that day, and the appeal of contestants from the judgment was taken within thirty days thereafter, viz., on November 24, 1919, but not within sixty days after the entry of the judgment or order admitting the will to probate. Within the time allowed by law, assuming the time commenced to run upon notice of the order denying a new trial, and the further time granted by the court, contestants served their proposed bill of exceptions, this proposed bill containing only matters relative to the residence of deceased at the time of her death, including the rulings of the trial court in regard to evidence offered on this question and its determination on the evidence that the deceased was a resident of Alameda County.