In Re Estate of Mollenkopf

ANGELLOTTI, J.

This is an appeal from an order admitting a certain document to probate as the last will of deceased, and appointing the petitioner William Mollenkopf executor thereof without bond as specified therein.

The material facts on this appeal are substantially as follows: The petition for the probate of said alleged will came on for hearing on March 19, 1912, at ten o’clock A. M. At that time no written grounds of opposition had been filed. One of the attorneys of the contestant (Juliana R. de Long, mother of deceased) announced to the court that written

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grounds of opposition to the probate had been mailed in Los Angeles to the clerk of said court the day before, and were then due in San Francisco, and that a copy thereof had been served on petitioner’s attorney the day before. The court announced that “as some of the witnesses had come from Los Angeles, he would hear their testimony preliminarily and without prejudice to the rights of the contestant.” Witnesses were then called and examined on behalf of the petitioner, and gave testimony that the will was duly executed, and that deceased was of sound mind and not acting under duress, fraud, etc. The court then stated that it would continue the further hearing of the matter to two o ’clock p. m. of the same day, which was done. Prior to that time the written opposition to the probate was filed in the office of the clerk of said court, and the same showed, by affidavit attached thereto, that it had been served by copy on the attorney for the petitioner, by the leaving of such copy in his office with a person in charge thereof under the circumstances and in the manner specified in subdivision 1 of section 1011 of the Code of Civil Procedure. This written opposition was in proper form, and to use the language of

In re Stewart,

100 Cal. 249, [34 Pac. 707], “set forth many alleged facts which, if true, established the invalidity of the asserted will.” When the matter came on for further hearing at two p. h., the written opposition on file, with proof of service, was brought to the attention of the court. The court then ruled that as the written opposition was not on file at ten a. m. of that day, the same should be disregarded, and also that the attorney for petitioner had not received sufficient notice. Thereupon the order admitting the will to probate and appointing petitioner executor was made, without any other disposition of the written opposition to probate.