82 P. 682 | Cal. | 1905
Alexander Dunsmuir died on or about the thirty-first day of January, 1900, in the city of New York. On the twenty-fourth day of February following his will was presented for probate to the supreme court of British Columbia at Victoria and was there duly admitted to probate. On the twenty-sixth day of April of that year an authenticated copy of the will, together with an authenticated copy of the decree admitting it to probate in British Columbia, was filed in the superior court of the city and county of San Francisco, with a petition for the probate of the will and for letters testamentary thereon. After due notice the will was admitted to probate. The administration proceedings were regular, and culminated in a decree of final distribution and the discharge of the executor. Under the will and by the decree the estate was distributed to James Dunsmuir, a brother of the deceased and petitioner herein. In the regular proceedings upon administration it is declared that Alexander Dunsmuir at the time of his death was a resident of the city and county of San Francisco. The decree of distribution upon the question of domicile declares "that the said testator, Alexander Dunsmuir, died on the 31st day of January, 1900, at the city and county and state of New York, and at the time of his death he was a British subject and a resident of, and domiciled at, Victoria, British Columbia, but temporarily residing in the city and county of San Francisco, as appears from the evidence both oral anl documentary introduced upon the hearing of the petition for distribution." The decree in the matter of the estate was entered upon June 4, 1901. Shortly thereafter James Dunsmuir, executor under the will, was finally discharged, and the administration was thus closed. Nearly five years after the will had been admitted to probate, and four years after final distribution and discharge of the executor, the superior court of the city and county of San Francisco, in which the will had been admitted to probate, upon motion of Edna Wallace Hopper, made its order vacating and annulling the order admitting the will to probate. While this order was made by the same court, — that is to say, the superior court in probate, — it was actually given by another judge than the one who had five years previously allowed probate of the will. Application in certiorari was made to this court to review this order vacating *139 and annulling the order admitting the will to probate, but the application was refused upon the ground that an appeal from this order would afford adequate relief. Subsequent to this order vacating and annulling the order admitting the will to probate the superior court appointed a special administrator and directed that administrator to take from James Dunsmuir, distributee under the decree of distribution, the property so to him distributed. Petitioner now comes to this court seeking to prohibit the execution of this last order of the court.
A preliminary objection by way of demurrer to the petition is presented by the respondent, under which he contends that the inquiry of this court must be confined to a consideration of the validity or invalidity of the order appointing a special administrator and directing him to take charge of the assets of the estate, and that the inquiry cannot go back of this order to a consideration of the question whether the order annulling the order admitting the will to probate was valid or invalid. We do not consider that any such limitation can be placed upon the inquiry. The order appointing the special administrator and directing him to take charge of the estate depends for its validity entirely upon the validity of the order previously made annulling the order admitting the will of Alexander Dunsmuir to probate. And this latter order annulling the order admitting the will to probate is itself an order void upon its face, unless in turn the order originally admitting the will to probate was itself void on its face. Hence it must follow that, if the order annulling the order admitting the will to probate is itself void, then the order appointing the special administrator, which is based upon such a void order, is itself necessarily void. The contention of respondent is fully and completely answered adversely to his position by People v. Davis,
The claim of petitioner insisted on here is that the order annulling the order admitting the will to probate is void, and that being so void the subsequent order appointing a special administrator and directing him to take from petitioner the property distributed to him by the decree, being an attempted interference with his right under such decree, the consideration of the validity or invalidity of the order annulling the order admitting the will to probate, upon which the decree is based, is not only proper, but essentially necessary. In our opinion there can be no doubt of the correctness of petitioner's position, and that it devolves upon this court to determine whether or not the order annulling the order admitting the will of Alexander Dunsmuir to probate was or was not void. To determine this necessarily involves a consideration of the order admitting the will to probate, because it must be conceded that if the order admitting the will to probate was not of itself void on its face the court had no power, after the lapse of time shown, to make an order setting it aside, for, as above quoted from People v.Davis, after the lapse of time limited by section
This brings us to the controlling inquiry in the case, which is whether the order admitting the will of Alexander Dunsmuir to probate by the superior court of the city and county of San Francisco was void on its face. Regardless of the distinction which may exist between the probate of domestic and foreign wills, and regardless also of the correct determination of the matter of the domicile of the deceased, we are satisfied that this inquiry must be answered in the negative. The order admitting the will to probate was in no sense void. Even if it were erroneous (a question not necessary to be decided), it was still valid until reversed upon direct proceedings upon appeal. This proposition is definitely settled in Goldtree v. McAlister,
Henshaw, J., McFarland, J., Angellotti, J., Shaw, J., and Van Dyke, J., concurred.
Rehearing denied.