IN RE: ARMSTRONG'S ESTATE.*

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District Court of Appeal, Third District, California.

IN RE: ARMSTRONG'S ESTATE.* ROBSON v. GROSS et al.

Civ. 5518.

Decided: March 30, 1936

Torchia & Sefman, of Los Angeles, for appellant. Minton & Minton, of Los Angeles, for respondents.

Appellant filed a petition to revoke the probate of the will of Maria Armstrong, deceased. Judgment was entered in favor of appellant upon special verdicts of the jury impaneled to try the issues. This appeal is prosecuted from an order granting a new trial following a motion to that end made by respondents.

The contention is made by respondents that an appeal does not lie from such an order. Section 963 of the Code of Civil Procedure provides that an appeal may be taken from an order granting a new trial, in an action or proceeding, where a trial by jury is a matter of right.

Beginning with In re Estate of Bauquier, 88 Cal. 302, 26 P. 178, 532, it has been uniformly held that an order granting a new trial following a judgment upon a will contest is appealable. This is in conformity with, and in amplification of, sections 1713 and 1714 of the Code of Civil Procedure, as these sections read before the repeal thereof by the adoption of the Probate Code. Sections 1231 and 1233 of the Probate Code are in substance a re-enactment of the former sections 1713 and 1714 of the Code of Civil Procedure, in so far as they apply to appeals from orders granting new trials in proceedings involving will contests. It follows that the appeal was properly taken.

The order granting the new trial does not specify the grounds upon which it was granted. Under the provisions of section 657 of the Code of Civil Procedure the question of the sufficiency of the evidence to support the verdict is eliminated from consideration, as that section declares the presumption that the order was not made upon that ground when the order is general. Phillips v. Wheeler, 55 Cal.App. 684, 203 P. 413.

The notice of motion and the motion for a new trial were predicated upon all of the statutory grounds. Although an appellate court may not go outside the grounds specified in the motion, the order will be sustained if it is supported by any ground assigned. Rahmel v. Rost, 178 Cal. 15, 171 P. 1068.

Respondents point out asserted irregularities in the proceedings, and errors at law occurring at the trial, and it therefore becomes our duty to determine whether such irregularities and errors occurred, and if they did occur, whether the trial court abused its discretion in granting the new trial.

An alleged witness to the will was one George Potter. He testified that he was, on the day the will bears date, an employee of the Mortgage Guarantee Company, in Los Angeles, and that he signed the document at the request of a fellow employee; that he was unacquainted with, and had never seen Maria Armstrong; that she neither signed the will, nor declared it to be her will, in his presence; and that it was presented to him by the employee of the company, with the request that he sign it. The name of Renata T. Middleton is signed to the will as the other subscribing witness. Although she testified to facts which, if believed by the jury, would have justified a finding that the will was executed in accordance with the required formalities, it is apparent that her recollection of the transaction was vague, and that her testimony was based upon the premise that it was customary, in the preparation and execution of wills in the business of the company, that the witnesses and the testator all be present at the time of the signing of a will by the testator and the witnesses and the acknowledgment of the will by the testator.

Respondents assert that certain instructions and the special verdicts were erroneously given to the jury. The special verdicts were in the following forms:

“1. Did George Potter sign said will in the presence of the said Maria Armstrong, the decedent, and in the presence of the other witness?

“2. Did George Potter sign the will in the presence of Maria Armstrong, the decedent, and at her request?”

The interrogatories contained in these verdicts were both answered by the jury in the negative. The attack upon the form of the first special verdict and the criticized instructions is based primarily upon the ground that the jury was informed that it is requisite that the witnesses sign as such in the presence of each other. Section 50 of the Probate Code, which is a re-enactment of sections 1276 and 1278 of the Civil Code, and which provides the manner in which witnessed wills must be executed and attested, does not require that the witnesses sign in the presence of each other. In re Estate of Dow, 181 Cal. 106, 183 P. 794; In re Estate of Lawrence, 196 Cal. 321, 237 P. 738. The error, however, did not affect the result. The second special verdict is a finding that the will was not signed by one of the two subscribing witnesses, either in the presence or at the request of the testatrix. This verdict alone required the revocation of the probate of the will. There is no merit in respondents' point that the second special verdict is faulty in that it failed to inquire as to whether Potter signed the will as a witness. The one issue to which all of the evidence was directed was upon the question as to whether Potter did sign with the necessary formalities as a witness. Obviously, the jury could not have misunderstood the purpose of the question, nor have been misled by the form in which it was couched.

When appellant contends that errors in instructions relied upon by respondents did not result in a miscarriage of justice, and that under section 41/212, article 6, of the State Constitution, a new trial should not have been granted, the appellate court may review the evidence to determine whether the trial court's discretion was abused in granting a new trial. Olinger v. Pacific Greyhound Lines (Cal.App.) 46 P.(2d) 774. Our conclusion is that the errors complained of did not result in a miscarriage of justice.

The order granting a new trial is reversed.

LEMMON, Justice pro tem., delivered the opinion of the court.

We concur: PULLEN, P. J.; THOMPSON, J.

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