Cotter v. Bryson

YORK, J. On December 21, 1931, Ole Peterson, deceased, in the presence of witnesses affixed his signature (by mark) to a purported last will and testament, while lying ill in the General Hospital at Los Angeles. By the terms of said instrument, his entire estate was left to one Elsie Skinner, a neighbor of decedent, there being no known relatives surviving him.

Edward J. Cotter, an attorney at law, was named in the will as executor, and he petitioned the court for letters testamentary, whereupon the public administrator of Los Angeles County filed a contest to the probate of the will. The executor and the beneficiary filed demurrers to the contest, which were sustained with leave to amend, but no amendment was filed by the public administrator. The attorney-general of the state of California filed a petition in intervention by virtue of section 1269a of the Code of Civil Procedure, and the executor and administrator demurred thereto, demurrers were sustained and the attorney-general filed an amended petition in intervention; upon the issues framed by the amended petition in intervention and the answers thereto by executor and beneficiary, trial was had before the court sitting without a jury, and thereafter judgment was rendered denying petition of the executor for the probate of the last will and testament of Ole Peterson, deceased. Motions for new trial and to vacate the judgment were heard and denied. In addition to denying the petition of executor for probate of the will, the judgment provided that Mrs. Skinner was not entitled to any part of the estate of decedent under and by virtue of the instrument dated December 21, 1931; and decreed that the petition of the public administrator of the county of Los Angeles for letters of administration be granted.

[445]It was found by the court that on the twenty-first day of December, 1931, and for a long time prior to that date, and continuously down to the time of his death, deceased “was not competent to make a last will and testament because of insanity and unsoundness of mind, and that at the time of the attempted execution of said purported will on the twenty-first day of December, 1931, and for some time prior thereto, the said Ole Peterson was suffering from a malady known as arterio sclerosis myocarditis senility, complicated by bronchial pneumonia, and that at the time of the attempted execution of said purported will, on the twenty-first day of December, 1931, and for a long time prior thereto, and at all times thereafter, and until the time of his death, the said Ole Peterson, deceased, was by reason of said malady, irrational and incompetent of transacting any business or of knowing the natural objects of his bounty and was then and there incapable of making a last will and testament; and that the said instrument heretofore referred to as the last will and testament of the said Ole Peterson, deceased, is not the last will and testament for the reasons hereinabove set forth.”