Swan v. Swan

DOOLING, J. pro tem. Mary Ann Munfrey died on April 12, 1942. On May 4, 1942, the court admitted to probate as the last will of decedent a document dated March 9, 1939. On October 13, 1942, appellants filed a petition attacking the validity of this will on the grounds of want of testamentary capacity and undue influence and praying that its probate be revoked, pursuant to section 380, Probate Code. To this petition respondents interposed a general and special demurrer which the court sustained on January 20, 1943, without leave to amend. From' the judgment for respondents which followed, this appeal is taken.

Appellants are grandchildren of decedent, and their father, decedent’s son, is living. They are, therefore, not heirs of decedent. To show the necessary interest to contest the will which had been admitted to probate their petition alleged:

“That said decedent made substantial provision for each of said petitioners, as devisees and legatees, in her last will and testament, which was duly executed by her in the man[567]ner and form required by law for the execution of a will; that the exact date of the execution of said last will and testament is unknown to said petitioners, but the same was executed prior to the alleged execution of said instrument and purported will bearing date the 9th day of March, 1939, and was in existence at the time of said decedent’s death.”

The alleged last will referred to in this allegation was not offered for probate by the contestants. Indeed the allegation that the exact date of its execution is unknown to them implies that it was not in their possession.

The primary point relied upon by respondents for an affirmance is that the contestants may not rely upon an earlier will under which they are beneficiaries to establish their interest to contest a later will, without producing the earlier will and offering it for probate. The Probate Code makes no such provision in express terms, providing only that -“any interested person” may contest a will (§§ 370 and 380, Prob. Code), and it is settled that a beneficiary under an earlier will which would be entitled to probate if the contested will is declared invalid is an interested person within the meaning of these sections. (26 Cal.Jur. 1082.)

The point was squarely ruled against respondents’ position in Estate of Phillips, 202 Cal. 490 at page 498 [261 P. 709], where the Supreme Court, speaking through Mr. Justice Shenk, said: