In Re Escover

John P. Escover died testate December 27, 1927. His will was offered for probate December 31st of the same year. Certain heirs filed a written opposition to probate on grounds of undue influence and lack of testamentary capacity. This contest was tried before the court without a jury and judgment was entered against contestants. The will was thereafter admitted to probate and on April 15, 1929, three heirs filed a petition to revoke probate on the same grounds. This was heard before the court without a jury and at the close of petitioners' case the court granted proponents a nonsuit. The appeal is from the judgment following the nonsuit and is taken on typewritten transcripts. Two points are raised by appellants: [1] First, that the probate court erred in denying their motion for a trial by jury. The denial was based upon the express provisions of section 1330 of the Code of Civil Procedure, which reads in part: "In all cases of petitions to revoke the probate of a will wherein the original probate was granted without a contest, . . . a trial by jury must be had." As the original probate was granted after a contest wherein the contestants might have had the issues tried by a jury…