Petitioner is asking for a writ of prohibition to restrain the superior court of the county of Los Angeles from taking further proceedings in the matter of the probate of the will of William Lowell Bundy, deceased, under an order granting a new trial.
Petition had theretofore been filed in said court for the probate of the last will of sаid decedent, wherein it was alleged that at the time of his death said decedent was a resident of the said county of Los Angeles.
The petitioner here, Lena Alden, thereupon filed opposition to the probate of said will denying that decedent was at the time of his death a resident of said county of Los Angelеs, and averring that he was at all times a resident of the county of Sacramento, and setting up as further grounds of opposition that decedent was incompetent to make a will, and that the same was signed by reason of undue influence and duress. It was also alleged that decedent prior to the execution of the will had been judicially declared an incompetent person, and that such judgment of incompetency remained in full force and effect; that during all of said period one M. P. Barnes was the duly *310 appointed, qualified, and acting guardian of the person and estate of said incompetent.
The hearing upon the рetition for probate, opposition, and answer thereto was regularly set down for trial, and upon the day set, in pursuance of a previous order of the court, the issues were segregated and the trial was had upon the sole issue of the place of residence of the decedent.
Several days wеre consumed in the hearing, many witnesses were examined on the part of both proponent of the will and contestant, the evidence being directed largely to the mental capacity of the decedent to choose a place of residence, during the period of his adjudged incompetenсy, the evidence disclosing that at the time he was declared incompetent he was a resident of Sacramento, but had been living in Los Angeles thereafter and for some time prior to and up to the time of his death.
Upon this hearing, which was had before the court without a jury, the court made its findings of fact and conclusions of law and adjudged in pursuance therewith that decedent was at the time of his death a resident of Sacramento, and thereupon made its order or judgment of dismissal of the proceedings for want of jurisdiction in the superior court of the county of Los Angeles to entertain the same.
The proponent of the will thereafter, in due time and in manner provided by law, moved for a new .trial on the ground of insufficiency of the evidence to support the findings and judgment of the court.
The court granted the motion and ordered a new trial.
It is petitioner’s contention “that a new trial will not lie in a probate matter such as this, where the court has merely decided the question of residence which is a preliminary prerequisite to its acquiring jurisdiction to hear the issues in the ease”; and that the “determining of the right of the court to hear the issues in the case is not a trial of the issues, and an order dismissing the petition for want of jurisdiction, is not a decision within the meaning of section 657 of the Code of Civil Procedure, which authorizes the granting of а new trial.”
The fact appears that the determination of the question before us rests solely upon whether or not the trial of the dispute as to decedent’s residence comes within the terms of section 656 of the Code of Civil Procedure.
*311 That section defines a new trial as “a re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee.”
According to the provisions of section 590 of the Code of Civil Procedure, “An issue of fact arises: 1. Upon a material allegation in the complaint, controverted by the answer; and, 2. Upon new matters in the answer, except an issue of law is joined thereon.”
The proceedings here arose upon the contest of a probate of will. It is expressly provided under section 1714 of the Code of Civil Procedure that the code sections relating to new trials, so far as not inconsistent with provisions of the code title governing probate proceedings, apply to “eases of contests of wills.”
There was in this case a trial of a question of fact before the court and a finding and decision thereon which resulted in a judgment of dismissal of the proceedings to probate the will, or what in an ordinary action would be termed a judgment of nonsuit.
The only material matter in dispute is whether or not the issue so рrosecuted was upon a material allegation presented by the pleadings.
The provisions of section 1312 of the Code of Civil Procedure, appealed to by petitioner here, are not conclusive or even persuasive on this point. That section does not purport to define or enumerаte all the issues that may be raised upon opposition to the probate of a will, but merely such issues as must be submitted to a jury if a jury is demanded. It authorizes written grounds of opposition to the probate, and declares that any issues of fact thus raised, involving the competency of the decedent to make a will, the frеedom of the testator from duress or undue influence, the due execution of the instrument, or any other question affecting the validity of the will shall be tried before a jury if either party demands a jury trial.
There may be, and obviously are, other issues of fact that frequently are put in issue—questions of jurisdiction, of the right of the contestant tо oppose the admission of the will to probate, matters which may be pleaded in abatement of the proceedings. The circumstance that these are matters which do not demand a jury trial is not significant, as a jury trial under our procedure is not a condition to a mo *312 tion for new trial. All issues of fact do not hаve to he tried by jury. Section 592 of the Code of Civil Procedure declares that in matters not otherwise directed “issues of fact must be tried by the court, subject to its power to order any such issue to be tried by a jury.”
The matter in dispute, therefore, resolves itself into a question as to whether or not the issue of residence upоn which this case was tried and determined was an issue of fact arising on the pleadings.
As a matter of fact, the issue is presented by the pleadings, in the petition for the probate of the will, the written opposition to the probate, and the answer to the opposition. It is true that there is no express requirement under the code that the jurisdictional facts as to the residence of decedent at the time of his death shall be set out in the written opposition by contestant; but it is required by section 1300 of the Code of Civil Procedure that the petition for probate shall set out the jurisdictional facts, and one of the essential jurisdictional fаcts, as set forth in section 1294, is that wills must be probated in case of a resident of the state “in the county in which the decedent was a resident at the time of his death.” The matter of contesting probate of a will is in the nature of a special proceeding, and the forms of pleading are specifically declared, but it seems -clear that in such a contest the petition for probate must be taken into account as the very foundation of the proceeding, since the filing of an opposition before a will has been admitted to probate is predicted on the fact that proceedings for admitting the will to probаte are pending. (Code Civ. Proc., secs. 1307, 1312.)
It may be true that it is the duty of the trial court to ascertain the facts as to residence, whether pleaded or not, but we see no reason why this circumstance should make it unnecessary to plead the issue, or render it any less an issue of fact under the pleadings when thus presеnted.
In
Estate of Latour,
In matters affecting the probate of a will the facts of the death of the testator and his place of residence at the time of his death are issues as vital to the proceedings as the facts of marriage, and residence in the state and county where action is commenced, are to an action for divorce; and it has long been settled that a complaint in divorce which fails to allege the marriage and statutory residеnce, fails to state a cause of action, and that findings on these issues are required to uphold the judgment.
(Haskell
v.
Haskell,
Yet there is the same legal duty upon the trial court to determine these questions of jurisdiction before granting a divorce as in determining the jurisdiction in the matter of the probate of a will; and in the divorce procedure there is not, or has not been until recently, any express requirement under the code that the jurisdictional facts be pleaded as is required in a petition for probate.
This court has held
(In re Bauquier,
While the scope of application of code provisions relating to new trials has been restricted in probate proceedings by code amendments since the foregoing decision (sec. 1714, Code Civ. Proc.), it has not in any way been limited so as to affect their appliсation to contests of wills.
In
People
v.
Bank of San Luis Obispo,
“The rule is that whenever, under the pleadings in a suit, an issue of fact is presented to a court, which is to be determined by the prepondеrance of evidence submitted on the issue, a party is entitled, after a decision or finding of the court on such issue, to have the court re-examine it upon a motion for a new trial, and this rule applies whether the action be one at law or equity, or in special cases or special proceеdings. This is the general rule as to all trials where an issue of fact is involved and determined, and there is nothing in the act taking away the right to move for a new trial, and nothing in the provisions of the code limiting its exercise to actions or proceedings other than special proceedings of the character here invоlved.”
The decision of the district court of appeal in
Estate of O’Neill,
32 Cal. App. Dec. 311, cited by petitioner, was vacated by order of this court, and a rehearing had herein and a decision was reached upon other grounds and without passing upon the question involved here.
(Estate of O’Neill,
In any event, while points in the O’Neill case were raised on a state of facts very similar to 1hose prеsented here, it is apparent from the argument advanced that the conclusion to the effect that the question of residence, which, as here, was tried separately and as preliminary to the at *315 tack on the will, was not an issue in the ease, was largely influenced by the contention that is made here, namely, thаt the issues of fact which could be presented in the contest of probate of a will are limited to the objections enumerated in section 1312 of the Code of Civil Procedure, as objections which demand a jury trial.
As already pointed out, issues are constantly presented in actions where the parties are entitled to a jury which, if standing alone, could be tried without a jury, and which, where a jury trial is had, are commonly submitted to the jury with other issues of the ease. Neither does the fact that for convenience of the parties and the court this issue as to residence was tried first and separately change its status as an issue in the cаse. It was so tried because if decided adversely to the proponent of the will it would determine the proceedings and make unnecessary the taking of evidence on the other issues of the ease. Had the issues all been tried at once and, after submission, decided for contestant solely on a finding that the dеcedent was not a resident of Los Angeles County at the time of his death, would it be contended that there had not been a trial and- that a motion for a new trial could not be predicated upon the insufficiency of the evidence to support such finding?
This view of the law does not trench on the general rule that motions for new trial do not lie from rulings of the courts on questions of fact collaterally raised, and which do not call for formal trial, and where no provision is made for framing issues under the proceedings, such as proceedings supported by affidavits, applications to set apart exempt property, family allоwances, and proceedings of similar character.
(In re Heldt,
It would seem good practice and good policy to sustain the right of motion for new trials upon such questions of jurisdiction as is presented in this proceeding. They are decisive of the case where the facts do not sustain the jurisdiction, and if there has been a mistrial, or the court *316 finds the evidence insufficient to support the finding, it would seem advisable to afford a speedy opportunity for a new trial rather than to incur the inevitable delay of a hearing on appeal.
The writ is denied.
Wilbur, J., Olney, J., Shaw, J., Angellotti, C. J., Lennon, J., and Lawlor, J., concurred.
Rehearing denied.
All the Justices concurred, except Wilbur, J., who was absent.