Laverty v. Homeier

DRAPER, P. J. On January 5, 1966, a will of decedent executed in 1965 was admitted to probate. On July 7, 1966, [867]respondents, surviving niece and nephew of decedent, offered for probate a 1953 will and a 1963 codicil thereto, seeking their admission, jointly with the 1965 document, as decedent’s last will. Appellants, the heirs at law of decedent’s predeceased spouse, opposed the petition. The 1965 will revokes all previous wills, leaves decedent’s furniture and personal effects to a friend, but makes no disposition of the residue. Respondents argued and offered evidence that the revocatory clause of the 1965 will was intended to be effective only if that will disposed of the bulk of the estate to respondents as did the 1953 will. Judgment was for respondents, and this appeal followed.

Appellants urge that respondents’ petition amounts to a contest of the 1965 will, and is barred because filed two days after expiration of the 6 months limitation for contest (Prob. Code, §§380, 384). But probate of an earlier will is not a contest of a later will already admitted to probate (Estate of Marx (1917) 174 Cal. 762 [164 P. 640, L.R.A. 1917 P 234]). A petition for probate of a later will, offered after the year period then allowed for contest (Code Civ. Proc., §§ 1327, 1333) is not a contest and is not barred by the limitation of time for contest (Estate of Moore (1919) 180 Cal. 570 [182 P. 285]). Appellants point to the absence of later cases on the point as weakening the authority of Moore. But this lack is readily explained. The Probate Code, adopted in 1931, specifically provides (§ 385) that “ [fjailure to contest a will does not preclude the subsequent probate of another will of the decedent. ’ ’ The draftsman of that code made clear that the section codifies the rule of Moore (Evans, Comments on the Probate Code of California (1931) 19 Cal. L. Rev. 602, 607). The petition for probate of the 1953 will and 1963 codicil is not barred because filed after expiration of the six months period for contest.

Of course, the earlier will and codicil could have no testamentary effect if they had in fact been revoked by the 1965 will. Respondents relied upon the doctrine of dependent relative revocation, i.e., they argued that the revocatory clause of the 1965 will was intended by the testatrix to be effective only if the later will made the same disposition of the bulk of her estate as did that of 1953 (Estate of Kaufman, 25 Cal.2d 854 [155 P.2d 831]; Estate of Cuneo, 60 Cal.2d 196 [32 Cal.Rptr. 409, 384 P.2d 1, 7 A.L.R.Sd 1132]). Appellants’ argument is, in essence, an attack upon the sufficiency of the evidence to support the findings.