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District Court of Appeal, Second District, Division 2, California.

Josephine W. BELTZ, Petitioner, v. The SUPERIOR COURT of the State of California TO AND FOR The COUNTY OF LOS ANGELES, Respondent.

Civ. 22401.

Decided: May 13, 1957

Arthur N. Hews, Los Angeles, for petitioner. Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Asst. County Counsel, Los Angeles, for respondent. Thomas LeSage, Pasadena, for real party in interest.

Petitioner seeks a writ of prohibition to restrain the respondent court from dismissing her contest of a will after probate In the Matter of the Estate of Stanley A. Beltz, Deceased, being number Bur. P 1282. No return to our alternative writ has been made but it appears from the petition that the proponents of the will in the above-entitled matter answered petitioner's contest and set up as an affirmative defense thereto an interlocutory judgment of divorce wherein the petitioner had waived all of her rights of inheritance to the estate of the decedent. It further appears that the petitioner herein has filed in the respondent court a civil action entitled Josephine W. Beltz v. Daniel Beltz, Individually and as Executor of the Estate of Stanley A. Beltz et al., being number 665595, to set aside the property settlement agreement incorporated in the interlocutory judgment of divorce above referred to and that this property settlement agreement is the basis of the affirmative defense in the will contest. It further appears that the respondent court has threatened, unless restrained, to dismiss the will contest by reason of the pendency of the civil action. It was made to appear at the hearing of this matter that the civil action is set for trial at an early date and that an adjudication therein will be determinative of the petitioner's right in the will contest proceedings, and that the personal representative of the estate does not object to deferring a hearing in the will contest until a determination of the civil action. We can find no authority justifying the threatened dismissal of the will contest by reason of the pendency of the civil action, and it is ordered that a peremptory writ of prohibition issue restraining the respondent court from dismissing the aforesaid will contest after probate solely on the ground of the pendency of the aforesaid civil action.


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