82 P. 672 | Cal. | 1905
The state of California, by the attorney-general, by an original proceeding in this court, applies for a writ of mandate to compel the superior court of Sacramento County to allow the state of California to appear in said court as contestant in a proceeding therein pending for the probate of a document alleged to be the last will of one Fritz Miller, deceased. Section 1307 of the Code of Civil Procedure provides that in such a proceeding any person interested may appear and contest the will. It is a necessary condition to the right of any party to appear that such party shall have some interest in the estate which may be affected by the probate of the proposed will. Waiving for the purposes of the decision all other objections to the granting of the writ, we think it must be denied, for the reason that the application made to the superior court does not show that the state of California possesses an interest in the estate of Fritz Miller sufficient to make it a proper party to the proceeding for the probate of his will.
It was claimed on the argument that Fritz Miller died without heirs or next of kin, or that if he left any kin they were non-resident aliens, and that the state would have, in the former case, an immediate present interest in the property, as provided in section
Upon this condition of the record the only ground upon which the state can claim that it has an interest sufficient to authorize it to maintain the contest is, that, although the deceased did leave surviving heirs in whom, if the will is invalid, the title to his property has vested, and who are not aliens whose title will be forfeited by escheat if they do not claim the property within five years, yet that there is a possibility that all the heirs, or some one of them, may fail to appear and claim the property, that thereupon proceedings may be instituted under section 1269 of the Code of Civil Procedure to declare an escheat, and that no heir entitled may then, or within twenty years after judgment therein, appear to claim *58 the property or its proceeds, and thereupon the state may take as absolute owner. (Code Civ. Proc., secs. 1271, 1272.) We do not think this remote and contingent possibility, or series of successive possibilities, constitutes an interest which will authorize the party, having nothing more substantial, to maintain a contest of a will.
The petition is denied and the proceeding dismissed.
Angellotti, J., Van Dyke, J., McFarland, J., Henshaw, J., and Lorigan, J., concurred.