Estate of Warner

Respondent, Mrs. Marietta Mordue, moves to dismiss the appeal herein upon the ground that the judgment and/or order from which the appeal was taken is not a final judgment or order within the meaning of Probate Code, section 1240.

This proceeding presents a contest of will after admission to probate. It involves a will dated July 2, 1953, and codicil dated January 27, 1955. The contest was tried before a jury. When the taking of evidence before the jury was concluded each of the appearing proponents of the testamentary documents made motions for a directed verdict which motions were denied. Sixteen written interrogatories, or special verdicts (eight with an equal number of alternate forms) were submitted to the jury. After more than three days deliberation the jury reported it was able to agree upon only three special verdicts, and was hopelessly deadlocked as to the remainder. These verdicts were received and filed and the jury thereupon discharged. Two of the three special verdicts had reference to the will while the third found that the codicil dated January 27, 1955 “was executed in the form and manner prescribed by law. ’ ’

Immediately following discharge of the jury,…