Sanders v. Simcich

McKee, J. This case arises out of a proceeding brought by the administrator of the estate of Catterina Jelletich, deceased, against the executor of the estate of Nicholas Jelletich, deceased, to set aside the probate of a lost or destroyed will made by the said Nicholas in his lifetime.

At the hearing certain special issues were framed and submitted to a jury that returned a special verdict substantially as follows: (1) That the said Nicholas Jelletich made the will in controversy; (2) that it had not been revoked; (3) that it had been admitted to probate upon sufficient proof; (4) that Catterina Jelletich, the wife of the said Nicholas, survived her husband; and (5) that the husband had, in his lifetime, made provision for her by a marriage contract.

This verdict was filed and entered on the minutes of the court pursuant to section 625 of the Code of Civil Procedure.

There were other issues, however, raised by the pleadings, which had not been submitted to the jury, and upon them plaintiff’s counsel asked the court to hear proofs upon which to prepare additional findings; but the request was denied, and upon the special verdict alone the court refused to revoke the probate of the will and gave judgment accordingly.

The refusal to take testimony and to make findings upon the other questions at issue was erroneous.

Besides, the judgment and order denying the motion for a new trial are erroneous, because the special verdict does not support the judgment, and the evidence does not sustain the verdict.

The first finding by the jury is immaterial; the second and third are findings of law. It is admitted that the fifth finding is not sustained by the evidence; and the record shows that the court erred in its rulings as to the only evidence upon which the fourth finding is based; and that the finding itself is not sustained by the evidence.

It appears by the record that on June 20, 1878, Nicholas Jelletich made his will. At that time he was a widower, about forty-three years of age. By the will he devised all his prop[52]erty, except a sum of money, to his then only son, John Jelletich, a hoy fourteen years old. Soon after making his will he left Amador County, where he resided, and went to Austria. There he married, and in October, 1878, returned to Amador County with his wife, Catterina Jelletich, who afterwards bore him two children. It does not appear that at the time of the marriage, or at any time thereafter, he made any provision for his wife by a marriage contract, and the will of June, 1878, contained no mention of her name nor any provision for her or her children. He and his wife with the two children resided in Amador County until October 20,1881. On that night his dwelling was burned, and he, his wife and the two children, perished in the fire.