Estate of Lowe

SLOSS, J. Upon the death of Amos Lowe rival application for letters of administration were presented by the respondents, children of deceased, and by the appellant, his surviving wife. The widow also asked for the probate of a paper claimed to be the will of Amos Lowe. The widow appeals from the order denying her petition. The court below was clearly right in refusing probate to the paper offered as a will. The writing on its face purported to be a mere agreement between husband and wife for the support of the latter, and was annexed to an earlier writing of like character signed by the two. Although signature by both was contemplated, the husband alone signed. Whether there was an effective execution of the agreement contemplated is not to the point. Manifestly the paper was not drawn and signed animo testancli. (Tennant v. John Tennant Memorial Home, 167 Cal. 570, [140 Pac. 242]; Estate of Keith, 173 Cal. 276, [159 Pac. 705].) The other point in controversy was over the right to administer. The widow was entitled to letters, unless she had waived her prior claim. (Code Civ. Proc., sec. 1365.) The petition of the respondents was first filed, and was accompanied by a request, signed by the widow, that it be granted. Before the hearing the widow filed an application for the grant of letters to herself, asking that her prior request in favor of the son and daughter be disregarded. The court found that there was no good or sufficient reason for this change of position. There is a further finding to the effect that the respondents had gone to expense and trouble on the faith of the widow’s request. This is, in effect, a finding of estoppel. We think the appellant is right in her claim that the evidence does not support the finding last mentioned. But a party may be held to a waiver of a prior right to letters even though the elements of an estoppel in pais do not appear. The rule established by our decisions is that where it is sought to retract such a waiver, it is for the trial court, in the exercise of a sound discretion, to determine whether greater weight should be given to the original surrender, or to the subsequent asser *113 tion of the right. (Estate of Kirtlan, 16 Cal. 162; Estate of Moore, 68 Cal. 281, [9 Pac. 164]; Estate of Bedell, 97 Cal. 339, [32 Pac. 323]; Estate of Shiels, 120 Cal. 347, [52 Pac. 808].) Though the evidence was conflicting, there was enough to support the finding that the widow changed her mind without good reason, and this finding, as we have seen, warranted the grant of letters to the respondents, irrespective of any question of strict estoppel. Complaint is made of various rulings on the admission and rejection of evidence. If error was committed in any instance, it was not of sufficient consequence to require a reversal. By the pleadings an issue was made regarding the validity and effect of the first agreement between the appellant and her husband, under which, as was claimed by the respondents, the widow had surrendered .any right to succeed to the separate property of the decedent. During the trial, a certain stipulation was made, pursuant to which the issues regarding the agreement were, by agreement of the parties, accepted by the court, withdrawn from consideration as immaterial. The court, nevertheless, made a finding against the widow with respect to the agreement. The appellant argues that this finding will bind her in subsequent litigation. The court should not have undertaken to pass upon the issue thus withdrawn. But we think the harmful effect which the appellant fears will not follow. On the entire record it appears that the finding relates to a matter which was not material, and such finding will not, therefore, control the parties in any subsequent proceeding. (Collins v. Gray, 154 Cal. 131, 135, [97 Pac. 142].) The order is affirmed. Shaw, J., and Richards, J., pro tern,., concurred. Hearing in Bank denied.