Estate of Stierlen

[142]

CURTIS, J.

Motion to dismiss appeal. This is a contest for the probate of a document purporting to be the last will and testament of George P. Stierlen, deceased. The executrix and sole devisee named in said document, Rosa Scott, filed a petition asking for the probate thereof as the last will and testament of said deceased. The contestant, Emma Stierlen, the surviving wife of said deceased, filed a contest thereto. In her written contest, which she filed after a voluntary dismissal by her of a prior contest to said will, said contestant set forth in five separate counts five distinct grounds wherein she asserted the invalidity of said document: 1, failure of execution; 2, unsoundness of mind; 3, undue influence; 4, actual fraud; 5, constructive fraud. The proponent of said will filed a motion to strike out the first count of said contest and a demurrer to the remaining four counts thereof. The court granted said motion and sustained said demurrer without leave to amend. A written order signed by the trial judge was made and filed striking out said count one. A written order was also signed and filed sustaining said demurrer without leave to amend and judgment was entered that the contestant take nothing by her contest and that proponent recover her costs. Respondent’s motion to dismiss said appeal is based upon the ground that the order striking out count one of said contest and the order sustaining the demurrer to the last four counts thereof and the judgment following said order are not appealable orders. The judgment and orders in probate proceedings from which an appeal can be taken are set forth and enumerated in subdivision 3 of section 963 of the Code of Civil Procedure. “The only appealable orders in probate matters are those designated in subdivision 3 of section 963 of the Code of Civil Procedure.”

(Estate of Edelman,

148 Cal. 233 [113 Am. St. Rep. 231, 82 Pac. 962].) Neither an order striking out a contest or a count thereof, nor an order sustaining a demurrer to a contest is one of the orders enumerated in said subdivision of said section, and consequently, neither of them is an appealable order. Appellant further calls to our attention the fact that while the probate court made the order sustaining the demurrer to the four last counts of the contest, it followed up said order with a judgment that contestant take nothing by said contest and that proponent recover her