Estate of Novotny

This is an appeal by proponent from a judgment denying probate to the instrument offered as the last will and testament of Grace L. Novotny, deceased. Before probate, a contest was filed by the surviving husband on his own behalf and as guardian ad litem of his minor daughter Jean Ann Novotny. The contest was tried before a jury and resulted in a disagreement. The court then set the hearing of the formal proof of the will before himself and as a matter of grace permitted counsel for the contestants to cross-examine the witnesses. Erances Avery, one of the subscribing witnesses, called by the court, testified in substance that she had known Mrs. Novotny for about three and one-half years before her death and in the capacity of a practical nurse had helped to take care of the deceased as well as her infant child Jean; that about three days before the execution of the will Mrs. Novotny’s mother visited her daughter and raised “Ned in general” because her daughter was married to Mr. Novotny and “wanted her to leave him” because “all he married her for was what she had” and “told her daughter that she had no business to get married until she was dead”; that on the following day at the…

In his petition for a rehearing in this matter the appellant argues that the court below assumed to decide matters that proponent was entitled to have determined by a jury. He asserts that when the proponent has introduced sufficient testimony upon the question of the execution of a will with due formality to establish a prima facie case the probate judge must submit the question of the due execution of the will to the jury. It would constitute a sufficient answer to appellant’s contention to say that the point raised by him is now suggested for the first time. Not a word is said concerning the question in the briefs upon which the cause was submitted. “It has been repeatedly held that where a case has been decided, a rehearing will not be granted for the purpose of considering a suggestion of error made for the first time in the petition therefor,” says 2 California Jurisprudence, at page 786. A number of authorities are cited to the point, from which we select only two: Prince v. Hill, 170 Cal. 192 [ 149 Pac. 578 ], and Estabrook Co. v. Industrial Acc. Com., 177 Cal. 767 [ 177 Pac. 848 ], In the latter of these precedents it is said: “It is the settled rule of this court that…