In re Estate of Dama

5 Coffey 24
CourtSuperior Court of California, County of San Francisco
DecidedJanuary 30, 1892
DocketNo. 6972
StatusPublished

This text of 5 Coffey 24 (In re Estate of Dama) is published on Counsel Stack Legal Research, covering Superior Court of California, County of San Francisco primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Estate of Dama, 5 Coffey 24 (Cal. Super. Ct. 1892).

Opinion

STATEMENT OF THE CASE.

COFFEY, J.

On January 3, 1889, Sarah Randall, hy her

attorneys, Joseph P. Kelly, Esq., and H. I. Kowalsky, Esq.,

[27]*27filed in this court a petition praying for the revocation of the probate of the Will of Luigi Dama, in which she set forth that Luigi Dama died intestate in San Francisco on the twentieth day of January, 1888, being at that time a resident of that city and county and leaving estate, therein of real and personal property; that at the time of his death he was a widower, his wife, Wealthy B. J. Dama, having predeceased him on the sixth day of November, 1882, in the said city and county; that she left surviving her Luigi Dama, her husband, and Sarah Randall, her mother, the contestant; also brothers and sisters—Edward W. Randall, of Bath, Maine, aged fifty-eight years, Benjamin Randall, Boston, Massachusetts, .aged forty-five years, Frank H. Randall, aged thirty-two years, and Jennie Forbes, Boston, Massachusetts, aged forty-six years; that at the time of the death of Luigi Dama he left property which was acquired by the joint labor of himself and his spouse, Wealthy, and that during his marriage he acquired all of the property of which he died seised; that he had no kin living at the time of his death, and that the only heir at law to his estate was the contestant, Sarah Randall; that his estate, situated in California and Massachusetts, was valued at about $35,000; that on the thirtieth day of January, 1888, an instrument was filed in this court purporting to be the last Will and Testament of said Luigi Dama, accompanied by a petition by one Sara Barker Smith, wherein it was alleged, among other things, that the said instrument was the last Will and Testament of said Luigi Dama, deceased, and praying that the same be admitted to probate as such and thereafter, on the twenty-ninth day of February, 1888, the said paper was admitted to probate; that said paper was not signed, written or executed by said Dama, nor was the same subscribed to by Jules Matthieu, No. 214 O’Farrell street, San Francisco, Henry Godard, No. 222 O’Farrell street, nor Antonio Bellini, No. 222 O’Farrell street, nor were the names that are now subscribed thereto, purporting to be the names of said witnesses, written or subscribed to by them, nor was the same signed by the said Luigi Dama, in the presence of said

[28]*28witnesses, whose names are signed thereto, nor were the names of said witnesses subscribed thereto by them in the presence of said Dama or in the presence of each other; that the name “Luigi Dama’’ was not written by him nor subscribed thereto by some person in his presence or by his direction ; that the names of the subscribing witnesses, Mathieu, Godard and Bellini, were not signed by them or subscribed thereto by some person in their presence or by their direction; that the said alleged Will was not written by the said Dama, nor at or by his direction, but that it is false, fraudulent and forged, and not his last Will and Testament; that according to said alleged Will one Sara Barber Smith, wife of Julius Smith, is named as the executrix without bonds, and also the principal devisee and legatee thereunder; and the contestant therefore prays for a revocation of the Will, because of the premises.

On January 22, 1889, a demurrer was interposed by two of the legatees in the Will, namely, the Reale Stabilimento dell’ Annunziata di Napoli and Andrea Manzo, and at the same time an answer of general denial was filed on behalf of the same legatees; this demurrer was subsequently overruled; and on January 14, 1889, an answer was filed by the executrix of the Will, Sara Barber Smith, which was subsequently on the twenty-third of January, 1889, superseded by an amended answer traversing all the material allegations of the contest.

On December 17, 1890, while the trial was in progress, the death of the contestant was suggested and a continuance thereupon had until January 5, 1891, when a legal representative, James C. Pennie, administrator, was substituted and the trial resumed.

The trial began on the twentieth of November, 1890, and proceeded with many interruptions from various causes until June 23, 1891, when it was submitted for the decision of the court, a jury having been theretofore expressly waived in open court.

[29]*29On September 24, 1891, the submission was by stipulation set aside and on September 25, 1891, the cause was resubmitted for judgment and decision.

(The trial occupied in all two hundred and sixty-four hours, and the argument in summing up by counsel, sixty-eight; in all, the time consumed was three hundred and thirty-two hours. The judge’s notes of evidence and argument comprise two hundred and seventy-three pages of legal cap.)

On Friday, in the forenoon, January 20, 1888, Luigi Dama died at his residence, 317 Mason street, San Francisco, and on Saturday afternoon, January 21, 1888, one R. W. Burtis applied for and obtained letters of special administration upon the estate of said Dama, which estate, according to the petition filed by said Burtis, consisted of real and personal property, the value and particular character of which he was unable to state; the petition also recited that the papers and documents belonging to said deceased were supposed to be in his box in the Safe Deposit Company; and that it was necessary that some person should be immediately appointed to collect, preserve and take care of the same; that there would be considerable delay in procuring general letters of administration, and that the said estate required immediate care and attention in order to preserve the same from loss and injury; that said Dama was unmarried and left no heirs or relatives in California; that the petitioner had made due search and inquiry for the purpose of ascertaining if the deceased left a Will, and from the information received the petitioner believed a Will to be among the decedent’s papers in the Safe Deposit Company. This petition was signed by R. W. Burtis, petitioner; and the name of Frank J. French, attorney for petitioner, appears subscribed to the same. On the same day an order was made, entered and filed, appointing said Burtis special administrator of the estate of Luigi Dama, deceased, and directing special letters upon his giving a bond in the sum of $1,000, which bond, signed by Frank J. French and B. F. Jellison and

[30]*30executed before George T. Knox, notary public, on the same day, was approved by the judge on that day; whereupon special letters of administration were issued to said R. W. Burtis and he entered upon that office.

On January 30, 1888, a petition was filed, signed by Sara Barker Smith and Prank J. French, her attorney, which set out that she was a resident of San Francisco, California, of lawful age; the petition recited the facts of the death and residence of Luigi Dama, and that the decedent left a Will dated at San Francisco, the eighth day of May, 1887; that said Will was left in the possession of the petitioner by the testator after its execution, and she believed and alleged it to be his last Will and Testament, and the same was filed simultaneously with the petition and presented for probate; that the Will was an olographic Will, it being entirely written, dated and signed by the hand of the testator himself; and it was also attested by three subscribing witnesses, whose names were signed at the end of the Will and under the signature of said testator; that the names and residences of said witnesses were as follows, namely: Jules Mathieu, No. 214 0 ’Farrell street, Henri Godard, No.

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Bluebook (online)
5 Coffey 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-dama-calsuppctsf-1892.