Laverty

On January 5, 1966, a will of decedent executed in 1965 was admitted to probate. On July 7, 1966, *867 respondents, surviving niece and nephew of decedent, offered for probate a 1953 will and a 1963 codicil thereto, seeking their admission, jointly with the 1965 document, as decedent’s last will. Appellants, the heirs at law of decedent’s predeceased spouse, opposed the petition. The 1965 will revokes all previous wills, leaves decedent’s furniture and personal effects to a friend, but makes no disposition of the residue. Respondents argued and offered evidence that the revocatory clause of the 1965 will was intended to be effective only if that will disposed of the bulk of the estate to respondents as did the 1953 will. Judgment was for respondents, and this appeal followed.

Appellants urge that respondents’ petition amounts to a contest of the 1965 will, and is barred because filed two days after expiration of the 6 months limitation for contest (Prob. Code, §§380, 384). But probate of an earlier will is not a contest of a later will already admitted to probate (Estate of Marx (1917) 174 Cal. 762 [ 164 P. 640 , L.R.A. 1917 P 234 ]). A petition for probate of a later will,…