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District Court of Appeal, First District, Division 1, California.


Civ. 14977.

Decided: September 26, 1951

Anthony S. Devoto, San Francisco, for petitioner. Charles R. Collins, San Francisco, for respondents. Morrison, Hohfeld, Foerster, Shuman & Clark, San Francisco, for respondents Edward I. Creely, Andrew J. Creely, Anita O'Connor.

This petition for a writ of prohibition to restrain the probate department of the Superior Court of San Francisco from taking any further proceedings on petitioners' petition for probate of a lost or destroyed will raises the question, not heretofore decided in California, as to whether, where there is no contest of the will pending, a proponent of an alleged lost or destroyed will has a right to a jury trial of the disputed issues of fact concerning the establishment of the will and its contents.


On March 21, 1951, petitioners filed a ‘Petition for Probate of Lost or Destroyed Will by Persons Named Therein as Beneficiaries' in which it was alleged that a certain document, copy of which was annexed, was the last will and testament of Thomas R. Creely, deceased; that prior to his death and without his knowledge or consent a named niece stole this will from the coat pocket of the testator and fraudulently destroyed it. Certain heirs at law or next of kin of said deceased filed answers denying the material allegations of the petition and praying that the purported will be denied probate. Thereafter petitioners filed a demand that the issues of fact be tried by a jury. This demand was refused. It is conceded that the probate judge intends, unless restrained by us, to try these issues without a jury.

Have Petitioners a Right to a Jury?

The issues of fact on a petition for probate of a destroyed will are (1) was there a will which was fraudulently destroyed (2) prior to testator's death (3) without his knowledge, and (4) the contents of the will (this must be proved by two credible witnesses). The Probate Code sections specifically referring to probate of a lost or destroyed will, §§ 350, 351 and 352, make no reference either directly or indirectly to a jury trial. There is no special notice provided for lost or destroyed wills, so the procedure and notice are similar to those required upon a petition for probate of a will.

There has been considerable confusion in California over the question of just what the situation is where there is a petition for a probate of a will and there has been filed either objections thereto, or a contest thereof. This confusion was cleared up, however, in Estate of Black, 199 Cal. 257, 248 P. 1015, where the court discussed the fact that some of the cases seemed to hold that in such event there were two separate proceedings, one to be tried by the court, the other by a jury. It reconciled these cases with others and laid down the rule that ‘the determination of the issues is for the jury, if a jury is demanded. Upon the hearing of the petition for the probate of the will, the determination of the issues is for the court alone. Estate of Relph [192 Cal. 451, 221 P. 361], supra. * * *

‘We are satisfied that, upon proceedings for the probate of a will involving both a contest of the will and a petition for probate the court is not at liberty, upon the preliminary and formal showing of due execution, to finally determine upon its merits any of the issues raised by the contest, but is limited to a determination of whether or not a prima facie case has been established in favor of the validity of the will, sufficient to warrant the submission of the case to a jury.

‘Inasmuch as section 1312 of the Code of Civil Procedure guarantees to either party litigant the right to a trial by jury upon any of the issues raised by the contest, it seems to us that the issues should be submitted to a jury for its determination, unless there is such a dearth of evidence that the granting of a motion for a nonsuit would be proper.’ (199 Cal. at page 262, 248 P. at page 1017.

Applying this rule to the case at bar, the trial court's duty is to determine whether the proponents can make a prima facie case. Petitioners have filed for probate an alleged destroyed will. Proper parties have appeared and objected to the probate thereof, raising issues as to (1) the existence of such will, (2) its destruction, if it ever existed, and (3) its validity, if it ever existed and was destroyed. It has been said that ‘The only difference between the probate of a will which can be produced and one which has been lost is as to the nature and quantity of the evidence required to prove it.’ McCormick v. Jernigan, 1892, 110 N.C. 406, 14 S.E. 971. Thus, the parties appear and contest the will, as contemplated by section 329 of the Probate Code and provided in section 370, ‘Any person interested may contest the will by filing written grounds of opposition to the probate thereof * * *.’ If the proponents make out a prima facie case, then the actual trial of the issues must be by jury, if demanded, and it was demanded here. ‘Any issue of fact involving * * * the due execution and attestation of the will, or any other question substantially affecting the validity of the will, must be tried by a jury * * *.’ Probate Code, § 371. The issues raised here come within this language.

Estate of Carr, 82 Cal.App.2d 780, 187 P.2d 912, is not contrary to our decision. There it was held that where a will contest with request for jury trial was instituted prior to probate and before trial thereof a second and conflicting instrument was offered for probate, there was no right to a jury trial on the question as to which was the later will. The reason given was that such an issue is not included in the issues for which section 371 of the Probate Code provides a jury trial. The case approves the decision in Estate of Black, supra, 199 Cal. 257, 248 P. 1015, to the effect that as to probate the court's duty is to determine whether a prima facie showing in favor of the validity of the will has been made before submitting the issues to a jury trial. It also approves Estate of Mollenkopf, 164 Cal. 576, 129 P. 997, in which the court stated: ‘It is not disputed that if the written opposition was properly served on petitioner's attorney, and was not filed too late to entitle it to be considered, it was a bar to the admission of the alleged will to probate until disposed of in the manner provided by law. Such disposition involved an opportunity to those interested in the will to answer the opposition, and a trial of the issues thus made, by a jury if either party so requested.’ 164 Cal. at page 578, 129 P. at page 997.

While it may seem anomalous that in proceedings for probate of a will a proponent must first make out a prima facie case before the issues are submitted to the jury to which he is entitled, it is probably a result of the historic denial of juries in probate proceedings. At common law proceedings for the establishment of lost wills were cognizable only in courts of chancery and hence a jury could not be demanded. Originally in California a jury was not permitted in any probate proceeding, even contests of wills. In 1855 the Probate Act was amended to permit a jury trial in will contests before probate. In 1872 section 1330 of the Code of Civil Procedure was adopted. It permitted juries in contests after probate also, but only if the original probate was had without a contest. In Estate of Dolbeer, 1908, 153 Cal. 652, at page 657, 96 P. 266, 268, in so limiting the right to a jury, the court said: “It has been held that the right of trial by jury is secured by the Constitution only in cases in which it had previously existed, in the administration of justice according to the course of the common law. Probate matters belong to ecclesiastical jurisdiction, where a jury was not a right. Such a proceeding is not really an action at law, as defined in the Code.' In re Moore, 72 Cal. 335, 13 P. 880. A contest of a will and proceedings to revoke its probate are special proceedings. Estate of Joseph, 118 Cal. 660, 50 P. 768; Carpenter v. Jones, 121 Cal. 362, 53 P. 842. It follows, then, in the absence of a statute providing for trial by jury, probate proceedings have always been heard by the court, without the intervention of a jury. Only in those probate proceedings where the statute expressly confers a right to a trial by jury does the right exist. [Citations.]' At the present time in contests of wills both before and after probate a jury is allowable. Probate Code, §§ 371, 382.

The true rule is set forth in Goodale v. Murray, 227 Iowa 843, 289 N.W. 450, at page 456, 126 A.L.R. 1121, quoting from Coulter v. Petersen, 218 Iowa 512, 255 N.W. 684: “The question, however, as to the terms of the lost instrument is for the court in the first instance. If the court should find that the proof is insufficient to establish the terms of the lost instrument, the plaintiffs, of course, must fail. If, on the other hand, the court finds that the lost instrument is properly proven and established, then the next qeustion is whether or not the same should be admitted to probate as the last will and testament of the deceased. When this point is reached the matter stands as do all wills when they are offered for probate; that is, the same is subject to contest on any of the recognized grounds of law, and if so contested may be tried to a jury.” (Emphasis omitted.)

In Budde v. Superior Court, 97 Cal.App.2d 615, 218 P.2d 103, the court held that persons filing written opposition to applications for appointment of guardian of the person and estate of an alleged incompetent were entitled to a jury trial. It reviewed many of the California cases considering the right to a jury in probate proceedings and concluded that the test of this right is whether there is statutory authority for a triable issue of fact in the particular proceeding. As pointed out hereinbefore, the issues in our case are triable ones for which there is statutory authority.

The petition alleges that the trial judge has stated that petitioners as proponents of the alleged destroyed will are not entitled to have any of the issues tried by a jury and that the judge intends to try all such issues himself. These facts are conceded, respondents contending that petitioners are not entitled to have the issues tried by a jury. They rely principally upon Estate of Relph, 192 Cal. 451, 221 P. 361, which is one of the cases considered and explained in Estate of Black, supra, 199 Cal. 257, 248 P. 1015. Also, they refer to Estate of Cazaurang, 75 Cal.App.2d 217, 170 P.2d 694, and Estate of Bell, 58 Cal.App.2d 333, 136 P.2d 804, which held that in probate proceedings jury trials may not be had unless authorized by statute. But, as we have pointed out, and as is pointed out in Estate of Black, supra, there is express authorization for the trial of the issues on opposition to the probate of a will. Cases like Estate of England, 214 Cal. 298, 5 P.2d 428; Estate of Land, 166 Cal. 538, 137 P. 246, and Estate of Dolbeer, supra, 153 Cal. 652, 96 P. 266, denying jury trials in certain specified probate proceedings, are not in point.

Respondents contend that petitioners in demanding a jury trial did not comply with Rules of the Superior Court and refer to rule 6 which refers to memorandum to set in civil cases, and to rule 18 which deals with matters in which a party desires a jury trial where the right thereto is not guaranteed by law,—in other words, where the granting of a jury trial is in the discretion of the court. Neither of these situations is the situation here. We do not have the record before us and hence do not know in what manner the jury was demanded. In view of section 371 of the Probate Code which provides that the issues of fact therein mentioned ‘must be tried by a jury, unless a jury is waived as provided by the Code of Civil Procedure’, it is obvious that rules 6 and 18 do not apply.

Let the peremptory writ issue, without prejudice, however, to the determination by the trial judge whether petitioners can present a prima facie case as set forth in Estate of Black, supra, and herein.

BRAY, Justice.

PETERS, P. J., and FRED B. WOOD, J., concur.

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Docket No: Civ. 14977.

Decided: September 26, 1951

Court: District Court of Appeal, First District, Division 1, California.

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