Syster v. Martin

SHEPARD, J. This is an appeal from the order admitting to probate the will of Elmer L. Sanderson, the above named deceased.

From the record before us, it appears that the will in question was made January 24, 1957; that the deceased died February 1, 1957; that said will was offered for probate in the Superior Court of San Diego County; that Columbian Building Corporation of San Diego, The Roman Catholic Bishop of San Diego, Charles F. Buddy, Thomas Ackerman, St. Jude’s Roman Catholic Church of San Diego, and St. Ann’s Roman Catholic Church of San Diego, were named in said will as legatees; that deceased was unmarried and left no issue; that Harvey W. Syster, the brother and sole heir of deceased, filed a contest against said will on grounds of incompetence of deceased, lack of due execution, violation of Probate Code, section 41, and that the will was not the free act of deceased; that O’Neill F. Martin, as executor, Columbian Building Corporation of San Diego, The Roman Catholic Bishop of San Diego, Charles F. Buddy and Thomas Ackerman appeared and filed separate answers to the grounds of opposition to probate of will; that such contest was tried before a jury; that prior to submission of the cause to the jury, the alleged ground of violation of Probate Code, section 41, was by the trial judge removed from consideration of the jury; that a verdict was rendered by the jury in favor of the contestant and against the validity of the will; that pursuant to said verdict a judgment was entered by the trial court refusing and denying probate of said will.

Appeal was duly taken to this court from said judgment, by The Roman Catholic Bishop of San Diego. The other legatees did not appeal. The only question presented to this court on that appeal was on the validity or invalidity of the will as a whole and whether or not it was entitled to probate as a whole. In other words, the attack on the will, as presented to the appellate court, pertained to the validity of the whole will, not just to the devise to The Roman Catholic Bishop of San Diego. After examining the entire testimony, this court concluded that the evidence was insufficient to support the [742]verdict and judgment denying probate, and made its order that “The judgment and order of the court refusing to admit the will to probate is reversed, with directions to admit the will to probate. ’ ’ A hearing was denied by our Supreme Court on August 26, 1959. (Estate of Sanderson, 171 Cal.App.2d 651 [341 P.2d 358].)

After the remittitur to the trial court, contestant moved the trial court to admit to probate only those portions of the will which devised to The Roman Catholic Bishop of San Diego. The named executor moved the admission of the entire will to probate. On October 9, 1959, the trial court denied contestant’s motion and made its order admitting to probate the entire will, in toto. Contestant appeals.