143 P. 697 | Cal. | 1914
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *392 On the fifth day of February, 1912, two papers were admitted to probate as the last will of Phillip Simmons, deceased, and a codicil thereto. On the third day of October, 1912, Nellie L. Wertner, claiming to be an heir at law of the decedent, filed a contest and petition for revocation of probate. No application for the issuance of a citation was made, and no citation was ever issued.
On February 18, 1913, Permelia L. West, one of the residuary legatees named in the will, served upon the contestant a notice that she would move for a dismissal of the contest and petition for revocation on the ground that no citation had been issued within one year after the probate of the will and codicil. The contestant served notice of a counter-motion for an order relieving her from her neglect and default in failing to have citation issued within one year, and directing citation to be issued. The ground of the motion was, as stated in the notice, the excusable neglect of the contestant and her attorney. The notice was accompanied by affidavits.
The motion to dismiss and the motion for relief and the issuance of a citation came on for hearing together, and the court made its written order, in which, after reciting the hearing and consideration of the motions, it "finds that the failure of said Nellie Wertner to have citation issued in due *393 time arose from the entirely excusable neglect of her attorney as set out in his affidavit; that it was such neglect as would entitle said Nellie Wertner to relief from the consequences thereof, if this court had power and jurisdiction to grant such relief; but this court is of opinion, and therefore so decides and adjudges that it has no jurisdiction or power to grant such relief." Following this statement is an order granting the motion of Permelia L. West, denying those of Nellie Wertner, and dismissing the contest.
From the order or orders so made the contestant appeals.
It is suggested by respondent that the part of the order denying relief is not appealable. But we think the denial of relief was necessarily involved in the dismissal of the contest, and may, therefore, be reviewed on the appeal from the order dismissing. That the last mentioned order is a proper subject of appeal is not questioned.
If the order which was made could be construed as an exercise of the court's discretion to refuse relief under section
The procedure for contesting a will after probate, is defined, so far as the main question here involved is concerned, by sections 1327 and 1328 of the Code of Civil Procedure. Section 1327 authorizes a contest by any person interested, within one year after probate. "For that purpose," it is provided, the contestant "must file . . . a petition in writing, containing his allegations against the validity of the will or against the sufficiency of the proof, and praying that the probate may be revoked." Section 1328 provides that "upon filing the petition, and within one year after such probate, a citation must be issued to the executor . . . and to all the legatees and devisees mentioned in the will, and heirs residing in the state, . . . requiring them to appear before *395 the court on some day therein specified, to show cause why the probate of the will should not be revoked:"
It seems entirely clear that, under this statutory scheme, jurisdiction of the subject matter of the contest is vested in the court by the filing of the petition. Mr. Justice Temple, in his concurring opinion in San Francisco Prot. O.A. v. SuperiorCourt,
While section 1328 requires that the citation shall be issued within the year, there is no provision, as there now is in the case of a summons (Code Civ. Proc., sec. 581a), prohibiting further prosecution of the proceeding, and requiring a dismissal, for failure to comply with the requirement.
In view of these considerations, we think it must be held that the court has power, under section
It follows that the order must be reversed, and that the court below should proceed to pass upon the merits of the appellant's application for relief, and dispose of the other *397 motions according to the decision upon such application. We do not reach this conclusion without some reluctance. The desirability of a prompt determination of questions affecting the settlement of estates is apparent. The opportunities afforded by the code for contesting wills are ample and on liberal terms, and it would seem to be the better policy to hold parties desiring to attack wills after probate to a rigid compliance with the requirement of issuing citation within the time allowed. But this is a consideration which must be addressed to the legislature, rather than the court. Under the existing statutes, as they have been applied by former decisions, we see no sufficient reason for holding that the court is without power to grant the relief here sought. We are not, of course, to be understood as intimating that the court below, should, when it comes to exercise its discretion upon the showing here made, exercise that discretion in favor of the appellant. The so-called finding, in the order, that there had been excusable neglect, was a mere preliminary to a refusal, for want of jurisdiction, to decide the question presented. The court below will be at liberty to pass upon the motion as if it were presented for the first time.
The order is reversed.
Henshaw, J., Melvin, J., Shaw, J., Lorigan, J., and Sullivan, C.J., concurred
Rehearing denied.