Stimmel v. Bank of America National Trust & Savings Ass'n

GOODELL, J. Mary R. Walters died on December 22, 1945, leaving a document dated November 19, 1945, purport[798]ing to be her will. On January 11, 1946, it was admitted to probate.

On March 5, 1946, respondent Crann filed a petition for its . revocation on the grounds that decedent was of unsound mind and that the document was not executed in the manner or form required by law. Therein he alleged that on April 3, 1945, decedent had executed a valid will in which he, Crann, was a devisee and legatee.

On January 24, 1947, appellant without leave of court filed a paper entitled “Joinder in petition for revocation of probate of will. ’ ’ Therein he alleged as heirs six nephews (including himself), one niece and three grandnieces of decedent, and three sisters and a brother of her deceased husband. The grounds for revocation are those alleged in the Crann petition. The prayer is that the .probate of the will of November 19, 1945, be revoked and that appellant “be permitted to join in the contest now pending herein. ’ ’

Four days later, on the 28th, respondent Crann filed a dismissal of his contest, dated November 27, 1946, and on the 31st he filed a stipulation dated November 8, 1946, signed by himself and by two of the legatees named in the will of November 19, 1945, agreeing to a division of the estate.

Early in April, 1947, respondent Crann moved the court, on notice, to strike appellant’s “Joinder” from the files on the ground that it had been filed without leave of court or authority of law. The motion was granted and this appeal was taken.

As far as appellant’s rights are concerned, it is clear that he could have pursued any one of three recognized methods of contesting this will. He could have filed a contest (1) before probate (Prob. Code, § 370), or (2) within six months after probate (Id., § 380) as did Crann, or (3) he could have become a party to the Crann contest by intervening therein pursuant to section 387, Code Civ. Proc., even after the six months had run, his grounds having been the same as those in the basic contest (Voyce v. Superior Court, 20 Cal.2d 479 [127 P.2d 536]).

He availed himself of none of these plain remedies. Instead, he filed the “Joinder” without any leave of court, and thereby sought to establish himself in the same legal position as he would have occupied had he followed the Voyee case and intervened. He makes no claim that his was an informal intervention, for he says: " The principles of these two cases [Voyee and this case] are analogous. The only