Estate of Cartery

Myrick, J.: Letters of administration were granted to Leon Cartery, a brother of deceased. Subsequently, on the 11th of July, 1879, Jean Marie Molle and E. Naud filed a writing which they alleged to be the will of the deceased, and a petition that the same be admitted to probate. The petition contained the allegation, “ that said deceased left a will bearing date the 9th day of July, 1878, iii the room occupied by him before his death, in the house of petitioner, in said county and State (Los Angeles County), and where the same was thereafter found, which your petitioners believe and therefore allege to be the last will,” etc. An order was made, fixing July 23rd, 1879, as a day for hearing the petition; and publication of the notice was commenced, and copies mailed July 12th, 1879. Leon Cartery, the brother of the deceased, on the 21st of July, 1879, filed a written contest, in which he averred, “ that the supposed will now offered for probate is not the last will and testament of the said Henri Cartery, for the following reasons: (1) That said supposed will was not signed by the deceased, or by any person in his presence and by his direction; (2) that said supposed will was not attested by two or more competent witnesses subscribing their names thereto at the request and in the presence of the said deceased, and of each other; (3) that at the time of the signing of said supposed will, if the same was signed by said testator, the said testator signed the same under duress, menace, undue influence, and fraud.”

The issues presented by the contest came on for trial by jury September 19th, 1879, and various interrogatories were propounded to the jury, the answers thereto constituting the verdict. The interrogatories embraced various matters, such as, whether the subscribing witnesses signed the proposed will in the presence of the deceased and of each other, and at his request ; whether he was aware of its contents; whether it was signed by the deceased in the presence of the witnesses; whether there was any undue influence, threat, menace, or fraud; and some matters not alluded to in the contest as filed.

Upon receiving the verdict of the jury, the Court made and entered its decree, among other matters reciting as follows: [472]“And the Court having considered the same, and found that each and every of the findings of said jury are true,” that said document was executed in all particulars as required by law, and that the witnesses duly witnessed and attested the execution of the same; that each and all of the allegations and grounds of contest are untrue ; and that said will is entitled to be admitted to probate; “it is therefore ordered, adjudged, and decreed, that said paper * * * is the genuine will and testament of said deceased; and the same was duly executed by him, and attested by the said witnesses, in all respects according to law; and that the same be and the same is hereby admitted to probate as the last will and testament of said deceased.”