Bearns v. Offdenkamp

MARKS, J. This is a motion to dismiss an appeal from a judgment dismissing a contest to the probate of a will before [222]its admission to probate, after a motion for nonsuit had been granted.

Mattie Beams died testate in San Diego County on May 25, 1945. A petition to probate her will was filed by the two friends of deceased who were named as executrices and sole beneficiaries. Contestant, Bert Beams, the son of deceased, was disinherited in the" will. He filed a contest on various grounds.

At the trial of the contest before a jury, the trial court granted a motion for nonsuit at the close of contestant’s case. On June 10, 1946, a formal written judgment of nonsuit dismissing the contest was entered. The will was admitted to probate by an order bearing the same date, and Mary Offdenkamp and Martha Welcome were appointed executrices without bond. They qualified as such and letters testamentary were issued to them on June 10, 1946.

The notice of appeal contains the following:

“You and each of you please take notice that the contestant in the above entitled action hereby appeals to the Supreme Court of the State of California, from the judgment made and entered in the Superior Court of the State of California in and for the County of San Diego on the 10th day of June, 1946, of non-suit, in favor of the proponents and against the said contestant and from the whole thereof.”

The motion to dismiss is made on the ground that contestant has attempted to appeal from a nonappealable order.

It is settled in California that the only orders or judgments in probate proceedings which are appealable are those specified in section 1240 of the Probate Code, which contains no provision for an appeal from an order or judgment dismissing a contest to a will before it has been admitted to probate, which order or judgment was made and entered after granting a motion for nonsuit.

In Estate of Patterson, 220 Cal. 370 [31 P.2d 197], the Supreme Court had before it a motion to dismiss an appeal from an order nonsuiting the appellants there in a contest of a will before probate. After citing Estate of Stierlen, 199.Cal. 140 [248 P. 509] ; Estate of Edelman, 148 Cal. 233 [82 P. 962, 113 Am.St.Rep. 231] ; and Estate of Rawson, 66 Cal.App. 144 [225 P. 474], as supporting its conclusions, it was said: