Estate of Carpentier , 104 Cal. App. 33 ( 1930 )

On February 28, 1919, the decedent F.G. Carpentier executed a document which is claimed by appellant to be both a will and a contract to leave by will certain property therein described to appellant. On April 17, 1927, the decedent executed a will expressly revoking all previous wills and making a different disposition of such property. Respondents presented the later will to the court for probate and appellant filed a contest based solely on the document of February 28, 1919, and the contract alleged to be evidenced thereby. Appellant also proposed said document for probate. The probate court sustained a demurrer to the contest, admitted the will of April 17, 1927, to probate, and denied probate to the document of February 28, 1919.

[1] The court's action was correct. A will, though it may be irrevocable as a contract is none the less revocable as a will, and in case such a will is revoked, the injured party cannot contest the later will in the probate court on that ground or insist on the probate of the earlier will, but is remitted to an independent action at law or in equity to enforce whatever rights he may have. (Estate of Rolls, 193 Cal. 594 [226 P. 608];Estate of Berry, 195 Cal. 354 [233 P. 330].)

The decree and orders appealed from are affirmed.

Sturtevant, J., and Nourse, Acting P.J., concurred.