IN RE: GREEN'S ESTATE.

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District Court of Appeal, Third District, California.

IN RE: GREEN'S ESTATE. DICK v. ELLIS ET AL.

Civ. 6994.

Decided: May 24, 1944

Warren H. Atherton, of Stockton, H. Raymond Hall, of Oakland, Gumpert & Mazzera, J. Calvert Snyder, and Darrah & Ellis, all of Stockton, for proponents, appellants, respondents. J. Oscar Goldstein and Burton J. Goldstein, both of Chico, and Jack J. Miller, of Stockton, for contestant, appellant and respondent.

Two appeals are presented upon this record. They emanate from a contest of will before probate. The contestant, Frankie Green Dick, the daughter of Robert Franklin Green, deceased, appealed from an order granting a new trial, after a jury returned verdicts in her favor on the issues of unsound mind and undue influence. The motion for new trial was prematurely made. The court failed to adopt the special findings of the jury or to determine the chief issue regarding the due execution of the will pursuant to Section 50 of the Probate Code. No judgment was rendered as required by Section 373 of that Code.

The proponents of the will also appealed from an order denying their motion for judgment notwithstanding the verdicts, which motion was made pursuant to Section 629 of the Code of Civil Procedure.

The contestant asserts that an appeal in a probate proceeding does not lie from an order denying a motion for judgment notwithstanding the verdict, and that proponents' appeal should therefore be dismissed. The contestant also claims that the order granting a new trial is ineffectual and void because the motion therefor was prematurely made without the adoption of the special findings of the jury, the determination of the other essential issues, including the due execution of the will, or the rendering of a judgment.

Robert Franklin Green, the testator, executed the will in question October 18, 1935. He was then about seventy–three years of age. He married his wife, Rosa Green, in 1904. They lived together as husband and wife only a brief period of time. They separated in 1904, since which date they have not lived together as husband and wife. At the time of their separation their property rights were settled. The estate consisted entirely of his separate property. The contestant, Frankie Green Dick, was born as the issue of the marriage. Mr. Green died August 31, 1939. The will, which was filed for probate, devised and bequeathed his entire estate in equal shares to his sister Mary Jane Snyder and his two nieces, Mrs. Freeman and Mrs. Erich. Ray E. Burson of Lodi was appointed executor without bond, and in the event of his death the Bank of America of that city was appointed executor of the will. The daughter filed a contest to the will before probate. That contest raised three issues, unsound mind, undue influence and fraud exercised in procuring the execution of the will. At the trial the last issue of fraud was withdrawn. The issues of unsound mind and undue influence were submitted to a jury for determination. Verdicts favorable to the contestant were rendered by the jury upon both issues. Evidence was adduced at the trial of the due execution of the will. The court failed to adopt findings either approving or disapproving the special findings of the jury. No finding was adopted regarding the essential question of the due execution of the will. No judgment was rendered. After the special verdicts of the jury were returned the proponents moved for judgment notwithstanding the verdicts pursuant to Section 629 of the Code of Civil Procedure, which was denied. The proponents then moved for a new trial under Section 657 of the Code of Civil Procedure, which was granted by the court on the express ground of insufficiency of the evidence to support the special findings of the jury. From that order and from the order denying proponents' motion for judgment notwithstanding the verdicts, separate appeals were perfected. Both appeals are presented on the same record.

We will first consider proponents' purported appeal from the order denying their motion for judgment notwithstanding the verdicts.

The proponents of the will gave notice of appeal from the order of the trial court denying their motion for judgment notwithstanding the verdict, under Section 629 of the Code of Civil Procedure. That section provides in part: “Where a new trial is granted to the party moving for judgment notwithstanding the verdict, the order denying the motion for judgment notwithstanding the verdict shall not be reviewed on appeal, unless the adverse party appeal from the order granting a new trial, in which case the order denying judgment notwithstanding the verdict may be reviewed on appeal.”

Frankie Green Dick, the contestant of the will, who has also appealed from the order granting a new trial, contends that no appeal lies from an order in a probate matter denying a motion for judgment notwithstanding the verdict, because Section 1240 of the Probate Code does not provide for an appeal from such an order. The contestant therefore asserts that proponents' purported appeal should be dismissed. With that contention we agree.

The right of appeal is purely statutory. In the absence of such statutory authorization no right of appeal exists. Superior Wheeler Cake Corp. v. Superior Court, 203 Cal. 384, 264 P. 488; 1 Bancroft's Probate Pr. 410, sec. 223; 2 Cal.Jur. 111, sec. 4. Section 1240 of the Probate Code, which was adopted May 11, 1931, was based on former subdivision 3 of Section 963 of the Code of Civil Procedure. In re Estate of Armstrong, 8 Cal.2d 204, 64 P.2d 1093; In re Estate of O'Dea, 15 Cal.2d 637, 104 P.2d 368; In re Estate of Allen, 175 Cal. 356, 165 P. 1011. In the O'Dea case, supra, the Supreme Court says, in holding that an appeal in a probate matter does not lie from an order denying relief under Section 473 of the Code of Civil Procedure, “We reiterate our adherence to the general rule, as stated above, and to the exception thereto as declared in [Re] Estate of Allen, supra.” [[[[15 Cal.2d 637, 104 P.2d 369.] The Allen case declares in that regard: “The order sought to be reviewed is not one from which an appeal lies. * * * the appellate jurisdiction in probate matters extends only to such orders and judgments as are specified in the third subdivision of section 963 of the Code of Civil Procedure. (Citing authorities.) This rule is subject to the limitation that an appeal will lie from an order granting or denying a motion for a new trial. * * * But, with this exception, subdivision 3 is the only part of section 963 to which resort may be had in determining what orders or judgments in probate may be made the subject of an appeal.”

The exception above referred to, recognizing the right to appeal from an order in a probate proceeding granting or denying a motion for new trial, which was contained in subdivision 2 of section 963 of the Code of Civil Procedure, but not in subdivision 3 thereof, is apparently based on the statute as it existed in 1917, when the Allen case was decided. Since that time subdivision 2 of section 963 was amended in 1923 to also authorize an appeal “from an order * * * denying a motion for judgment notwithstanding the verdict.” That same amendment is still contained in section 963. Upon the authority of the Supreme Court recognizing the right of appeal in probate matters from an order granting or denying a motion for new trial, we are unable to perceive why, if that appeal lies, the same authorization should not also apply to orders granting or denying motions for judgments notwithstanding the verdicts, which ground is now included in the same subdivision of that section. This conclusion is reinforced by the language of section 629 of the Code of Civil Procedure, as amended in 1937. However, it has been definitely determined otherwise. In re Estate of Webster, 43 Cal.App.2d 6, 18, 110 P.2d 81, 87, 111 P.2d 355. In the case last cited, in which a hearing by the Supreme Court was denied, it is specifically said: “The attempted appeal from the order denying the motion for judgment notwithstanding the verdict, not being an appealable order under section 1240 of the Probate Code, is dismissed.”

On the authorities above cited, the proponents' purported appeal from the order denying their motion for judgment notwithstanding the verdict should be dismissed.

We shall now consider the validity of the order of court granting proponents' motion for a new trial.

The contestant gave notice of appeal from the order granting a new trial. The jury merely determined the two issues of alleged unsound mind and undue influence, which were submitted to it, in favor of the contestant. The record contains no decision of the court on any other issues. The question of due execution of the will, as required by section 50 of the Probate Code, apparently has not been determined. No decree pursuant to section 332 of the Probate Code, admitting the will to probate, or denying probate, has been rendered or entered. Section 373 of the Probate Code provides that: “The jury must return a special verdict upon the issues submitted to them by the court; and upon the verdict, or upon the proof taken if a jury is waived, the court must render judgment, either admitting the will to probate or rejecting it.”

The contestant asserts that the motion for new trial was premature and that the court lacked jurisdiction to grant the new trial since essential issues had not been determined and no judgment had been rendered. In support of that contention the contestant relies on In re Estate of McKenna, 138 Cal. 439, 71 P. 501; Cloud v. State Terminal Co., Ltd., 22 Cal.App.2d 568, 71 P.2d 600, and Frye v. Pacific Freight Lines, 27 Cal.App.2d 748, 81 P.2d 1027. In the McKenna matter, supra [138 Cal. 439, 71 P. 502], it is said:

“No finding, judgment, order, or other decision of the court appears in the record, or is referred to in the bill of exceptions; and it is said by the appellants' counsel in his brief, and, in effect, admitted by counsel for respondent, that there is none. The motion for new trial, the statement and affidavits on which it was made, and the order denying the motion, all relate exclusively to the verdict of the jury.

“It is clear, therefore, that there has been no decision of the case, and that the proceedings for new trial were prematurely taken, and, on that ground, that the motion was rightly denied. Morris v. De Celis, 41 Cal. 331; De Gaze v. Lynch, 42 Cal. 362; Baker v. Borello, 131 Cal. [615], 617, 618, 63 P. 914. The verdict of the jury did not dispose of all the issues raised by the petition of the contestants, and it was therefore the duty of the court to find upon the issues not thus disposed of. [In re] Estate of Benton, 131 Cal. [[[[472], 475, 63 P. 775. Code Civ.Proc., § 1329.”

In Re Estate of Benton [131 Cal. 472, 63 P. 776], last cited, the court said:

“The findings of the jury upon the issues submitted to them stand the same as the findings of fact made by the court in a civil action; that is, when we are brought to the consideration of their sufficiency to support the judgment rendered.”

In the Frye case, supra, in which a hearing by the Supreme Court was denied, the court held that “proceedings for a new trial taken prematurely are a nullity and ineffectual for any purpose,” and that a premature service of notice of motion for a new trial could not be waived. To the same effect are the cases of Middleton v. Finney, 214 Cal. 523, 6 P.2d 938, 78 A.L.R. 1104, and Root v. Daugherty, 201 Cal. 12, 255 P. 181.

It has been uniformly held that a motion for new trial under section 656 of the Code of Civil Procedure is premature until the court or a jury has determined all the issues involved. Barnes v. Foley, 189 Cal. 226, 207 P. 885; Bell v. Marsh, 80 Cal. 411, 22 P. 170; Bradley Co. v. Bradley, 37 Cal.App. 270, 173 P. 1009; San Joaquin & Kings River Canal & Irr. Co. v. James J. Stevinson, 30 Cal.App. 405, 158 P. 768; 20 Cal.Jur. 171, sec. 112; 1 Hayne on New Trial and Appeal, 103, sec. 18. The findings of a jury in a contest of will are special in their nature and must be adopted by the court before they become effective. Probate Code, sec. 373; 2 Hayne on New Trial and Appeal, 1299, sec. 234. In the authority last cited it is said:

“The tendency is to regard them [the verdicts in probate proceedings] as verdicts in equity cases; i. e., as advisory, and without effect, until adopted. * * *

“If verdicts in probate proceedings are thus to be regarded as advisory, as in equity, and require to be adopted before they become effective, the initiation of new trial proceedings before such adoption is premature, as in equity.”

In the case of James v. Superior Court, 78 Cal. 107, 20 P. 241, a writ of mandamus was denied. The petition sought to compel the court to settle a statement on motion for new trial in a probate proceeding. Certain issues of fact were presented and decided by a jury in a probate proceeding. The jury was discharged and nothing further was done. The court took no further action. The Supreme Court said:

“The verdict of the jury in this proceeding * * * was merely advisory to the judge, and of no force or effect until adopted by him.

“In that state of the case we think the notice of intention to move for a new trial, and the presentation * * * of the settlement were premature.”

We conclude that the motion for new trial in the present case was premature and that the court was therefore without jurisdiction to grant the motion.

The question of the sufficiency of the evidence to support the special findings of the jury on the issues of unsound mind and undue influence is elaborately argued by the respective parties. In view of our conclusion that the order granting a new trial was ineffectual and void, it is unnecessary and futile to discuss the sufficiency of the evidence to support the verdict.

The purported appeal from the order denying proponents' motion for judgment notwithstanding the verdicts is dismissed.

The order granting a new trial for lack of evidence to support the special findings of the jury on undue influence and unsound mind is reversed. Respondents, Henry F. Ellis et al., to recover costs on appeal.

THOMPSON, Justice.

ADAMS, P. J., and PEEK, J., concur.