IN RE: WATKINS' ESTATE. (1941)

Supreme Court of California.

IN RE: WATKINS' ESTATE. WATKINS et al. v. KEELE.

L. A. 17331.

Decided: January 23, 1941

Simpson & Simpson, of Los Angeles, for appellants. Faries & McDowell, of Los Angeles, amici curiae for appellant. Stimson & Edwards, Noel Edwards, and Louis Thomsen, all of Los Angeles, for respondent. Salisbury, Robinson & Himrod, Freston & Files, Bailie, Turner & Lake, Frank P. Doherty, Gerald E. Kerrin, Frank J. Barry, Girard F. Baker, MacFarlane, Schaefer, Haun & Mulford, John E. McCall, Howard C. Velpmen, and Schell & Delamer, all of Los Angeles, and DeLancey C. Smith and George K. Ford, both of San Francisco (Charles A. Loring and Gordon L. Files, both of Los Angeles, of counsel), amici curiae for respondent.

In the petition for rehearing it is claimed that the decision ‘overrules without mentioning an identical case involving a mutual will, the Estate of Learned, 156 Cal. 309, 104 P. 315’. The Learned case was not called to our attention prior to this petition for a rehearing. A reading of the opinion in Estate of Learned shows that that case did not involve the question presented in the present case and that any language used in that case which may appear to be in conflict with the language used in the opinion herein was not necessary to that decision. The Learned case was correctly decided on the facts before the court and is not overruled by the present case. To the extent that there may be any apparent conflict between the language used in opinion herein and the language used by way of dictum in the Learned case, the views expressed in our opinion in this matter must prevail.

The petition for a rehearing is denied.

PER CURIAM.

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