IN RE: MUNFREY'S ESTATE. SWAN ET AL. v. SWAN ET AL.
It is suggested in the petition for rehearing that in any case where an earlier will is secreted or withheld the provisions of Probate Code, § 321, would afford ample legal means to the beneficiaries thereunder to compel its production, but Probate Code, § 321, could in any event only afford relief to a party who knows the person “who has possession of a will.” Cases can readily be envisaged in which a contestant would know that he was a beneficiary under an earlier will which was in existence at the testator's death, without knowing what had become of it thereafter. The right to contest the later will should not be denied to a beneficiary under an earlier will because he is unable physically to produce the earlier will on which he relies at the time of filing his contest. We agree with the suggestion in the petition for rehearing that the contestants should by their pleading either make specific allegations concerning the terms of the earlier will and the manner and time of its execution or plead facts justifying their failure to do so. But here the sustaining of the demurrer without leave to amend has deprived the contestants of the opportunity to amend their pleading in this as in every other particular.
The petition for rehearing is denied.
PETERS, Presiding Justice.