Aubry v. Both

SHENK, J. This appeal is from a judgment entered after the demurrer of respondents to a petition to revoke probate was sustained without leave to amend.

The record shows the following: William Austin Field died testate on January 6, 1949, leaving his widow, Anna Caroline Field, and a cousin surviving. At the time of his death both spouses were in their 80’s and had been married for more than 50 years. On January 25, 1949, on petition of Walter Both, an instrument dated December 30, 1948, was admitted to probate as the will of the decedent. The provisions thereof bequeathed the entire estate to the widow during her life. Apparently subject to that provision residence property designated as 324, 326, 328 and 328A Hayes Street in San Francisco was devised to Walter and Martha S. Both, friends, “as a token for the many acts of kindness they have done for me and my said wife during the past years.” The residue was left to the Shriners Hospital for Crippled Children in San Francisco. Some years previously the spouses had executed reciprocal wills.

[153]Prior to his death and in November, 1948, allegedly with the connivance of Walter Both, the decedent obtained a judicial declaration of his wife’s incompetence and the appointment of himself as her guardian. She thereupon was placed in a sanitarium where she remained until her death on June 19, 1949.

On July 11, 1949, the will of Anna Caroline Field was admitted to probate, and Edna F. Aubry, a niece was appointed administratrix with the will annexed. On July 21, 1949, as such administratrix she filed the petition to revoke the probate of the will of the predeceased spouse, alleging as grounds of contest nonexecution of the instrument, lack of capacity to make a will due to age and mental and physical infirmities and debilities, and undue influence of Walter Both between whom and the decedent husband a confidential relationship existed.

The petition to revoke probate was filed within the six months’ limitation of section 380 and no question of untimely filing arises. The only question is whether the widow’s administratrix may file the petition to contest the will of the predeceased spouse.

This court has recently reviewed the question of what interest entitles a person to contest a will within the meaning of sections 370 and 380 of the Probate Code. (Estate of Plaut, 27 Cal.2d 424 [164 P.2d 765, 162 A.L.R. 837].) Under the circumstances here appearing the widow unquestionably had an interest which would be impaired by the probate of the instrument in question or benefited by setting it aside, and was therefore a person interested who' might contest the will. The problem on this appeal, therefore, relates to the matter of the survival of .the widow’s right of contest and whether after her death the alleged cause may be prosecuted by her personal representative.