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District Court of Appeal, Second District, Division 3, California.


Civ. 13682.

Decided: January 29, 1943

Dudley Robinson, of Los Angeles, for appellant. Jerry Giesler, of Los Angeles, and Ward Sullivan, of San Francisco, for respondents.

The contest as to the facts in this will contest case narrowed down as the trial progressed until the question before the jury finally became simply this: Did the witnesses subscribe their names to the will of Abner H. Stone during his lifetime or was it after his death? To a special interrogatory which covered this question, the jury gave an answer indicating its belief that the witnesses' names had been placed on the will after Abner H. Stone's death. We have reached the conclusion, which was first reached by the trial judge, that the evidence did not warrant the jury making the answer that it gave. We are further of the opinion that the evidence did support the trial court's determination that the will was duly executed. The order and judgment dismissing the will contest, notwithstanding the jury's verdict, and admitting the will to probate, from which the appeal before us was taken, are therefore to be affirmed.

The critical issue on this appeal will emerge as free from complexity as was the ultimate question of fact at the trial. These proceedings were inaugurated by the action of Jerome Stone and Josef Widoff, named as executors in the will of Abner H. Stone, in filing a petition offering the will for probate. There is no reason to doubt that the offered document, dated February 5, 1939, was signed, at its end, by Abner H. Stone, and that the names “Joseph Loeb” and “Celia LeVee” appearing just after his signature and introduced by the words “Witnessed by,” were the signatures of the persons bearing those names who, as witnesses at the trial, testified that they had signed their names as witnesses to the will.

However, Fannie Bomash, a sister of Abner H. Stone, to whom $10 was devised, did doubt the due execution of the purported will and filed “Grounds of opposition to Probate of Will.” Answers were filed by the two named as executors and by some seven of the legatees. Of the three grounds of opposition advanced by the contestant, the first and third grounds disappeared during the course of the contest, leaving only the contention that the will had not been duly executed in that, among other things, those who “witnessed” the will were neither requested to do so by Abner H. Stone nor did they do so in his presence. As the instrument in question was typewritten, it obviously could not be admitted as an holographic will. Probate Code, § 53. Its validity depended, therefore, on compliance with section 50, Probate Code, the last of whose requirements is: “There must be at least two attesting witnesses, each of whom must sign the instrument as a witness, at the end of the will, at the testator's request and in his presence.” The absence of a statement on the instrument itself showing that this provision had been complied with, does not affect its validity as a will (In re Estate of Pitcairn, 1936, 6 Cal.2d 730, 732, 59 P.2d 90, 92), but absence of the facts is fatal. In re Estate of Krause, 1941, 18 Cal.2d 623, 625, 117 P.2d 1, 2. The contestant, therefore, had a good ground upon which to stand if she could fortify it by competent evidence.

A contestant's task is apt to prove a difficult one, and the appellant found it to be so in this case, for she had the burden, not merely of proceeding to meet a prima facie case made by the petitioner, but of proving at least one ground of her contest, and, as it developed, that which she had to prove was a negative. Since the four–to–three decision in Re Estate of Latour, 1903, 140 Cal. 414, 73 P. 1070, 74 P. 441, the law of this state has been as restated in Re Estate of Relph, 1923, 192 Cal. 451, 458, 221 P. 361, 364: “When a will is contested before probate there are two separate and distinct proceedings pending before the court. One is the petition for the probate of the will. The other is the contest of the probate of the will. [In re] Estate of Latour, 140 Cal. 414, 73 P. 1070, 74 P. 441; [In re] Estate of McDermott, 148 Cal. 43, 49, 82 P. 842; [In re] Estate of Cullberg, 169 Cal. 365, 146 P. 888. The petition for the probate of a will is distinctly a proceeding in rem. [In re] Estate of Baker, 170 Cal. 578, 585, 150 P. 989; [In re] Estate of Allen, 176 Cal. 632, 169 P. 364. The petitioner or proponent appears therein as plaintiff and tenders to all of the world all of the issues of fact relevant to the ultimate question of the validity of the will. While all persons interested in the estate are in a sense parties defendant thereto, there are no defendants in the sense of active parties litigant in this proceeding. It is in a sense an ex parte proceeding, in which the burden rests upon the petitioner to prove all the material allegations of his petition, whether denied or not, and the responsibility is upon the court to guard and protect the interests of all persons interested therein. The contest of a will, on the other hand, while a proceeding in rem, is at the same time an adversary proceeding, the parties to which consist, on the one hand, of those persons interested in the estate who have appeared and filed written grounds of opposition to the probate of the will (commonly referred to as the contest), and, on the other hand, those persons interested in the will who have appeared and filed written answer thereto. The only issues of fact involved therein are those which are framed by the allegations of the contest and the denials of the answer. [In re] Estate of Gregory, 133 Cal. 131, 136, 65 P. 315. As to those issues the burden of proof rests upon the contestants ([In re] Estate of Latour, supra; [In re] Estate of Dolbeer, 149 Cal. 227, 86 P. 695, 9 Ann.Cas. 795; [In re] Estate of Cullberg, 169 Cal. 365, 146 P. 888), and the proponents are not called upon to submit any evidence until the contestants shall have produced some evidence legally sufficient to support their allegations upon one or more of those issues. If the contestants fail to produce such evidence, the decision of the contest must be against them, even though the proponents produce no evidence therein whatsoever. [In re] Estate of Latour, supra, 140 Cal. [at page] 421, 73 P. 1070, 74 P. 441. * * *” See, also, In re Estate of Henderson, 1925, 196 Cal. 623, 636, 238 P. 938, 942. The sentence with which section 1312, Code of Civil Procedure, formerly ended, “On the trial, the contestant is plaintiff and the petitioner is defendant,” which was deemed of significance in the Latour decision, is now the opening sentence of section 371, Probate Code. No change in the rule has been made by the adoption of the Probate Code; the burden is on the contestant to prove his case, and if his case is that the will was not duly executed (as was true in Re Estate of Latour) he must prove this negative.

There is a vital difference, in such a case, between the duty of going forward with the proof and the burden of proving the ground made the basis of the contest. If the contestant had only the burden of going forward, then his task would be accomplished by evidence which had the effect of destroying the prima facie case made by the petitioner. This could be done, for example, by so impeaching the petitioner's subscribing witnesses that the trier of fact would be disposed to disregard their testimony, with the result that the petitioner's prima facie case would no longer exist. But that is not the situation that pertains when the contestant is regarded as the plaintiff in an action independent of the proceeding to probate the will. The testimony of the petitioner's witnesses, in this case, was taken out of the hearing of the jury, and this was proper. In re Estate of Henderson, supra, 1925, 196 Cal. 623, 635, 238 P. 938, 942. When the contestant later called those same witnesses to testify that they had subscribed their names to the will at the request of Abner H. Stone and in his presence and in the presence of each other, they were the contestant's witnesses, and if their testimony was entirely eliminated from the case, “the jury would have been compelled to find against the contestants upon the issue of nonexecution, unless they produced some evidence which tended affirmatively to prove such nonexecution.” In re Estate of Relph, supra, 1923, 192 Cal. 451, 461, 221 P. 361, 365.

The question before us appears, therefore, to be simple in its elements. As the order for the entry of a judgment notwithstanding the verdict should not have been granted unless there was “no evidence of sufficient substantiality to support a verdict in favor of plaintiff” (In re Estate of Leahy, 1936, 5 Cal.2d 301, 303, 54 P.2d 704, 705, repeating a portion of a quotation in Re Estate of Lances, 1932, 216 Cal. 397, 400, 14 P.2d 768, respecting the like rule as to a directed verdict), it follows that our problem has been resolved to finding an answer to this question: Did the contestant, or anyone, produce any evidence, including of course any inference reasonably to be drawn, which tended affirmatively to prove that the will of Abner H. Stone had not been duly executed?

We find no such evidence. There is evidence which supports these facts constituting a part of the contestant's theory of what happened. Abner H. Stone typewrote that which he intended should be his will, making an original and a carbon impression, both of which he signed. The original impression he had Jerome Stone place in his (Abner's) safe deposit box; the other he left in Jerome's possession. Eight days after Abner's death, which occurred on April 18, 1939, Abner's safe deposit box was opened in the presence of a county official, the two petitioners named as executors, the contestant, and several others, not including the subscribing witnesses, and the fact was at once discovered that the “will,” which was the original impression and which had been in the box, had not been witnessed. About an hour after the party left the safe deposit vault and bank, Jerome reappeared at the bank with the carbon impression of the will, bearing the names of two subscribing witnesses. This was the document which was offered for probate and which the court received.

The jury could have concluded also that sufficient time elapsed, between Jerome's departure from and his return to the bank, for him to have obtained the carbon copy from his own safe deposit box, to have secured the attendance of the two subscribing witnesses at the office of his co–executor, Josef Widoff, who had been Abner's “family lawyer,” and for them to have subscribed their names as witnesses on the carbon impression. All this could have happened––we need not note the details of evidence which support this theory of events––but there is no evidence that any of it did happen other than that, within the time allotted, Jerome did obtain possession of the carbon will, report to the office of Josef Widoff, and then reappear at the bank. This, of course, falls far short of proof that the will which was admitted to probate was not signed by the witnesses until after Abner's death. There is much evidence, which we need not detail, that warranted the jury in disregarding, because untrustworthy, the testimony of Jerome, of the two subscribing witnesses and of other witnesses, but, as we have already noted, the effect of destroying all their testimony was not to produce evidence and that it was the contestant's burden to do.

A circumstance not yet related, attending the opening of Abner's safe deposit box, is deemed particularly significant by the contestant. To evaluate its significance we should know that the story of the two subscribing witnesses was such that, if true, it would follow that Jerome was present when the will was witnessed and knew that the event had taken place. From the reaction of Jerome to the discovery that the document found in the vault was not witnessed, aided by other evidence, the jury was fully justified, it seems to us, in concluding that at that moment Jerome neither knew that a will to be valid had to be witnessed nor that there was in existence one which had been witnessed. This of itself would serve to discredit the two subscribing witnesses, and also Jerome, all of whom had detailed the witnessing of the will in his presence. But there remains a fact not disputed, that the carbon impression bore the signatures of the two witnesses. This fact of itself, it has been held, is evidence that a will has been duly executed. In re Estate of Braue, 1941, 45 Cal.App.2d 502, 114 P.2d 386, relying upon In re Estate of Pitcairn, supra, 1936, 6 Cal.2d 730, 59 P.2d 90. That the subscribing witnesses did not state the truth in relating that Jerome was present when they placed their names upon the document, the jury had reason to believe. That it was not witnessed as required by the statute (section 50, Probate Code) the jury may have had reason to suspect, but there was no evidence to support their conclusion that it had not been.

As there was no evidence tending affirmatively to prove that the will, which was admitted to probate, was not duly executed, the trial court properly ordered a judgment dismissing the contest, notwithstanding the verdict of the jury. This left pending for decision the matter of the petition that the will be admitted to probate. There can be no question that the trial court's decision to admit the will to probate was amply supported by the evidence.

The judgment and order appealed from are affirmed.

BISHOP, Justice pro tem.

DESMOND, P. J., and SHINN, J., concur.