Llyod v. Ganahl

GRIFFIN, P. J. Verne Cutler, aged 76 years, died testate on November 19,1956. On December 7,1956, without contest, the will was admitted to probate and letters testamentary were issued. On June 6, 1957, one day before expiration of the six-months limitation period (Prob. Code, § 380), appellants herein, adult stepchildren of deceased, without notice to respondents, filed their petition to revoke probate of the will. The record indicates a citation was issued but never served or brought to the attention of respondents. About March 5, 1958, the executor received a letter from appellants’ present attorney inquiring as to the status of the petition to revoke and wanted to discuss a possible settlement. For over nine months after filing such petition to revoke no action whatever was taken to serve a citation or copy of the petition on respondents, although their names and addresses, as well as the names and addresses of their attorneys, were fully disclosed by the record and these persons were well known to appellants’ then counsel. During said period of inaction real property was sold in said estate and it was ready for distribution, but due to the filing of said petition for revocation, distribution could not be made.

On March 13, 1958, without further action on the part of contestants, respondents moved to dismiss appellants’ petition on the ground of want of prosecution. Appellants filed an affidavit in opposition claiming the delay was due to unfamiliarity of appellants’ attorney with the proper procedure and claimed there was a delay in mail service. Respondents claim the petition to revoke was filed only for the purpose of delay in effecting the distribution of the estate and thereby forcing a settlement; that the beneficiaries are the only children of deceased by his first marriage and that contestants are his stepchildren by a second marriage, their mother having predeceased decedent. The trial court, after hearing the matter on its merits, granted the motion to dismiss.

Appellants argue that under section 583 of the Code of Civil Procedure, an action such as this may not be dismissed by the court for want of prosecution within two years of its filing, citing Estate of Morrison, 125 Cal.App. 504, 507 [14 P.2d 102] ; Wilson v. Barry, 119 Cal.App.2d 621, 624 [259 P.2d 991]; and Hibernia Savings & Loan Soc. v. Lauffer, 41 Cal.App.2d 725, 729 [107 P.2d 494].

Respondents claim that the power of the trial court to dismiss an action for failure on the part of plaintiffs to prosecute it with diligence is an inherent power which exists [263]