Estate of Brooks
Before: Department, Sharpstein
Synopsis
Practice—Reserving Ruling — Irregularity — Immaterial Error. — All questions relating to tlio sufficiency of the pleadings should be passed upon when presented, and before proceeding further with the trial. Accordingly, where the Court below, upon the application of the contestant of a will— made at the close of the testimony—to amend his petition, reserved its ruling, but stated that, in case the will was set aside, it would allow the amendment, and otherwise not: Held,- that this was an irregularity; but held also, as evidence had been admitted as to all the facts alleged in the amended petition, that the contestant was not injured, and that the ruling was not ground for reversal.
Evidence—Hearsay—Ruling.—Upon the trial of the contest of a will, a witness testified to some remarks made a few days before the execution of the will, by the proponent, (who was also the principal beneficiary) as to the condition of the testator; and the Court said, “That is not evidence. Declarations of the proponent before the date of the will * * * are not evidence in this case”; to which the contestant excepted, but neither side moved to strike out the evidence. Held, 1st, that this did not amount to a ruling to exclude the testimony; and 2ndly, that the evidence was objectionable as hearsay.
Id.—Expert.—Upon an issue as to the mental condition of a testator, the opinions of persons acquainted with Ms business and social habits, held to be admissible in evidence.
Will—Undue Influence—Confidential Relations.—The principal beneficiary under a will was the partner of the testator, at the time of the testator’s death and for many years previous. Held, that this did not per se raise a presumption of undue influence.
Id.—Id.—Trust.—The testator, soon after the execution of the will, told the proponent that he would some day tell him what he wished to have him do with some of his property; and before his death, directed him to pay certain persons and charitable institutions certain sums. Held, that—while, in a proper case, the Courts would compel a devisee to carry out such directions—the fact of such directions having been given and assented to, was ’ not evidence that the execution of the will was procured by undue influence.
Department No. 2, Sharpstein, J.: This is an appeal from the judgment and order of the Probate Court of the City and County of San Francisco, refusing to set aside the will of the decedent after it had been admitted to probate. The case comes here upon the judgment roll, including a bill of exceptions. There was a section or paragraph in the petition of the contestant, which read as follows : “That deceased was not free from fraud at the time of the execution of said instrument. For that it was the will and desire of the deceased that his estate should be distributed, after his decease, differently than as named in said instrument, and that in executing said instrument he made and declared as a part thereof, certain verbal bequests or legacies in favor of petitioner and divers other persons, (and conferring benefits not conferred by said instrument) and charging the same on said Reid as executor ; but at said Reid’s request, omitted to note them on said instrument, because of the promises of said Reid to pay them, which promises were made without any intention of performing them on the part of said Reid.” This was demurred to on the [473]grounds, as stated in the demurrer, that it did not “ state facts sufficient to constitute a cause of action, apportion, or contest.”
We confess our inability to discover the appositeness of all of these alleged grounds of demurrer. The demurrer was sustained by the Court on the ground “ that the matter ” contained in said paragraph “ did not constitute a reason for revoking the will.” There was no error in that ruling, as we will endeavor to show in another part of this opinion.
The bill of exceptions contains an amended petition of the contestant, which the proponent objected to, on the “ ground that it was immaterial, and because the allegations of one of the paragraphs were substantially the same as those contained in the paragraph of the petition to which the court had sustained a demurrer.” To this objection it is stated that “ the court reserved its decision: stating that in case the will was set aside and declared null and void, it would allow said amended petition ; but in case it was sustained, it would disallow said amended petition. The Court finally disallowed said amended petition, to which ruling the contestant duly excepted.”
It strikes us that this constituted an “ irregularity in the proceedings of the Court,” but we are unable to perceive that the appellant was thereby “ prevented from having a fair trial.” The practice of reserving a decision upon a question of this character until the evidence is in, is not, in our opinion, commendable. All questions relating to the sufficiency of the pleadings should be passed upon when presented, and before proceeding further in a trial. The orderly conduct of a trial requires this. But as we understand it, the Court treated this amended petition as properly filed and before it until all the testimony had been taken, and then rejected it because it was not sustained by the evidence. If this be so, the appellant had the full benefit of his amended petition. And that he did, the testimony taken on the trial and copied into the transcript abundantly proves. He was permitted to introduce without limitation, so far as we can discover, evidence in support of each and every allegation of his amended jDetition.
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