In Re Estate of Lennon

HENSHAW, J.

The will of the deceased having been admitted to probate, appellants, as next of kin, filed a petition asking for the revocation of the probate upon, three grounds: “First, That said alleged last will and testament is invalid and contrary to the laws of the state of California as made and provided by section 1313 of the Civil Code of said state relating to charitable uses; second, that the decedent was unduly influenced in the making of the will; third, that the will was not entirely written, dated and signed by the hand of the testator.” The second and third grounds were not supported by evidence and seem to be abandoned upon this appeal. The first is not a ground for revocation of the probate of a will, since, if any will falls under the inhibition of section 1313 of the Civil Code, that section itself provides for the disposition of the assets of the estate which must follow.

(Estate of Willey,

128 Cal. 13, [60 Pac. 471].)

Appellants undertake to bring to this court two appeals, one apparently from the decree settling the final account and ordering distribution, the other from the judgment of the court following their petition to have the will of the deceased set aside upon the grounds above stated. The record upon these appeals is fragmentary, uncertain, and incomplete. No evidence is presented against the rulings and decision of the court. Yet the record does contain the statement that proofs were taken upon the account and petition for distribution and submitted to the court, and that oral and documentary

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evidence was introduced which the court considered, a trial by jury was expressly waived and the matter was heard and tried before the court without a jury. The statement of the appellants “that the will is contrary to the laws of the state of California as made and provided by section 1313, C. C.” is not the allegation of any fact, but is merely a legal conclusion which the pleader draws, a conclusion which, even if sound, as has been said, does not call for the revocation of the probated instrument. Section 1313 restricts charitable devises and bequests and provides that if such bequests are found in a will made within thirty days of the testator’s death they are void. If in a will executed more than thirty days before the testator’s death they are valid to the value of one third of the testator’s estate. If he has left more than one third of his estate to such charities, a