Stewart v. Hall

Citations

• 100 Cal. 246
• 34 P. 706
• 1893 Cal. LEXIS 778

Syllabus

<p>Contest of Will—Striking Out Written Opposition of Contestant of Will—Proofs of Service.—If the written opposition of the contest of a will is in proper form, and sets forth facts which, if true, establish the invalidity of the asserted will, and an admission of service thereof by the attorneys of the executor who petitioned for the probate of the will is indorsed thereon, it is error for the court to refuse to consider proofs of service of the written opposition upon other parties, upon the ground that they were filed too late, and to strike the written opposition from the files, and to proceed to probate the will, and issue letters testamentary to the executor named therein, without a hearing of the matters alleged in the opposition.</p> <p>Id.—Duty of Court.—There being a full showing as against the executor, at least, that the will was invalid, and that he had no rights in the premises, the court should not have refused to give the contestant an opportunity to prove the averments of the written opposition, although there was not at the Lime appointed for the hearing sufficient proofs of service on the other parties, and the court should have ordered that contestants furnish proper proof of service on other parties who were residents of the county interested in the estate, and that the latter should have proper time in which to demur, or answer to the opposition as provided by the code.</p> <p>Id.—Vacation of Order—Striking Out Opposition—Refusal to Set Aside Probate and Letters—Appeal.—A subsequent order vacating the order striking out the opposition, and giving the contestant certain time to serve the same, is no answer to an appeal from the order admitting the will to probate, and appointing the executor, where the court refused to set aside that order. Contestant had a right to be heard before the will was probated and the executor appointed.</p>