Welch v. Hereford

California Supreme Court Jul 13, 1886 No. No. 9164Published

Before: Foote

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Holding. The court held that a probate court may admit a will to probate based on evidence presented, even if the specific classification of the will (e.g., olographic) was not explicitly stated in the initial pleadings. Furthermore, the court affirmed the admission of evidence and the validity of the will under existing statutes at the time of the testator's death.

Issues

Whether a probate court may declare a will olographic if not specified in the pleadings.
Whether the court erred in admitting depositions without formal proof of the deponents' non-residency.
Whether a will is invalid if executed before the effective date of a statute but the testator died after it became operative.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the court, in view of all the evidence before it, had a right to determine whether or not the will should be admitted to probate, either as an olographic or other kind of will.”

“The court is to admit the will to probate or not, under all the facts shown in evidence, in accordance with the statutes of this state.”

“The orders appealed from should be affirmed.”

Synopsis

Estate of Decedent—Probate of Will—Petition—Essential Averments. — Under section 1300 of the Code of Civil Procedure, it is not essential that the petition for the probate of a will should state whether it is an olographic or other species of will, nor does any defect of form or in the statement of the jurisdictional facts actually existing invalidate the prohate.

Id.—Contest on Probate—Findings — Olographic) Will.—Where the probate of a will is contested, and the court by whom the contest is tried finds against the contestants on all the issues raised by them, a further finding that the will is valid as an olographic will, although not necessary to sustain the judgment admitting it to probate as such, is not erroneons, notwithstanding no issue as to its validity as an olographic will was raised by the contest.

Id.—Olographic Will—Execution before Adoption of Civil Code — Validity of. — An olographic will is not invalid because made and executed prior to the time section 1277 of the Civil Code became operative, if the testator did not die until after the section took effect.

Practice—Deposition — Evidence of Non-residenoe of Witness — Waiver. —Error in admitting depositions in evidence, without preliminary proof that the witnesses resided out of the county where the cause was being tried, is waived, if the party against whom the depositions were offered dispensed with the formal proof of such fact on the trial, and accepted the verbal statement of the opposing counsel as to their non-residence.

Foote, C. This is an appeal from an order admitting to probate the will of G. F. T. Learned, and revoking letters of administration previously granted (upon the supposition that no will then existed) to E. A. Learned; and from that refusing the contestants of the will a new trial upon the issues propounded by them.

The first point of objection raised by the appellants who contested the probate of said Avill is, that the petition therefor did not propound it as olographic, and the contestants did not direct their attack on it as such, and not being advised by the pleadings that the instrument was claimed to be that kind of a will, the court had no right in its findings so to declare it.

In this the appellants are mistaken. In such a proceeding the contestant is plaintiff, the jury are to find upon all the issues of fact raised by the contest, and none others, and if facts are disclosed in evidence which go to the question of the propriety under the law of admit[142]ting the will to probate upon grounds which are not put in issue before the jury, the court is then to pass upon such evidence by findings.

In the case now under consideration there was no jury, and the court, in view of all the evidence before it, had a right to determine whether or not the will should be admitted to probate, either as an olographic or other kind of will. (Estate of Collins, Myrick’s Prob. Rep. 73, 74; Code Civ. Proc., sec. 1312; Estate of Cartery, 56 Cal. 470.)

And there is nothing in section 1300 of the Code of Civil Procedure which declares that a petition for the probate of a will shall state whether it is an olographic or other species of will, nor will any “ defect of form or in the statement of the jurisdictional facts actually existing make void the probate of a will”; and the evidence in this case sustained the findings.

The court is to admit the will to probate or not, under all the facts shown in evidence, in accordance with the statutes of this state.

But in this case, admitting that tribunal found upon an issue not embraced in the pleadings of the contest, yet it also found against the contestants on-all the issues' raised by them, and in such a case nó finding declaring the will valid as olographic under section 1273 of the Civil Code was necessary in order to sustain the judgment. (McCourtney v. Fortune, 57 Cal. 617.)

Welch v. Hereford

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