76 Wash. 27 | Wash. | 1913
This is an original application to this court for a writ of prohibition to be issued to the superior court for Chelan county and the Honorable Wm. A. Grimshaw, judge.
From the petition and affidavit of the petitioner, filed herein on July 7, 1913, it appears: That on March 8, 1911, Julia Sackett died testate, in Chicago, Cook county, Illinois; that the petitioner herein is the sister of the deceased; that on June 30, 1911, the petitioner herein presented and filed in the superior court for Chelan county the last will and testament of the deceased, together with a petition asking that the same be admitted to probate; that, under and by virtue of the will, the petitioner was the sole devisee and legatee; that the superior court thereupon fixed the 12th day of July, 1911, as the date of the hearing of the petition for probate, and ten days’ notice of such hearing was thereupon given by posting notices thereof in three of the most public places in Chelan county; that on July 12,1911, a full and complete hearing of the petition for probate was had; that thereupon on that day the clerk of the superior court entered in the minutes of the court that the court ordered that the will be admitted to probate and that letters be issued to Ann Wood, the petitioner herein, and fixing her bond at $6,000; that, on the same day, the court made and signed its certificate of probate of the will and a formal written order admitting the will to probate, which certificate and order were filed with the clerk on July 13, 1911; that thereafter and on July 13, 1911, the petitioner herein qualified as executrix of the will by filing a good and sufficient bond in the designated sum of $6,000, and by executing the oath required by law; that on the same day letters testamentary were issued to her as such executrix; that such executrix thereupon proceeded with the discharge of her
To the petition and affidavit, the respondent on July 11, 1913, filed a demurrer upon the ground that it does not state facts sufficient to entitle the petitioner to the relief demanded.
The questions to be determined are: First, if the superior court failed to acquire jurisdiction, will the writ issue? Second, if the contest was not instituted within the time fixed by statute, can the court acquire jurisdiction? And, third, was the contest instituted in time?
I. It is contended that there is a plain, speedy and adequate remedy by appeal, and for that reason the writ in any event should not issue. But the law appears to be that, where the court is proceeding with a case without first having acquired jurisdiction, it presents a proper case for the invocation of the writ of prohibition. White v. Superior Court, 126 Cal. 245, 58 Pac. 450; State ex rel. Alladio v. Superior Court, 17 Wash. 54, 48 Pac. 733; State ex rel. Mackintosh v. Superior Court, 45 Wash. 248, 88 Pac. 207. In the case last cited, speaking of the proper function of the writ, it is said:
“The function of a writ of prohibition is to arrest proceedings which are without, or in excess of, jurisdiction, and not to review errors in matters of procedure where jurisdiction exists.”
II. Where the statute authorizes the contest of a will, and specifies the time within which such contest may be instituted, the court has no jurisdiction to hear and determine a contest begun after the expiration of the time fixed in the
In the case last cited, the court uses this language:
“It is the established doctrine, that, independently of statutes authorizing it, courts of equity have not, under their general chancery powers, jurisdiction to entertain a bill to set aside a will or the probate thereof. [Citing authorities.] We therefore held in Luther v. Luther, 122 Ill. 558, that as the jurisdiction of courts of equity, in this state, to entertain bills to set aside the probate of wills, is derived exclusively from the statute, such jurisdiction can only be exercised in the mode and under the limitations therein prescribed, and that the time limited within which bills for that purpose might be brought was jurisdictional, and the bill must be exhibited within the period thus limited, or the court is without power to entertain the same.”
III. The final question then is, Was the present contest begun in time. In Rem. & Bal. Code, § 1307 (P. C. 409 § 115), it is provided that,
“If any person interested in any will shall appear within one year after the probate or rejection thereof, and, by petition to the superior court having jurisdiction, contests the validity of said will, or pray to have the will proven which has been rejected, he shall file a petition containing his objections and exceptions to said will, or to the rejection thereof. Issue shall be made up, tried and determined in said court respecting the competency of the deceased to make last will and testament, or respecting the execution by the deceased of such last will and testament under restraint or undue influence or fraudulent representation, or for any other cause affecting the validity of such will.”
And by § 1309 (P. C. 409 § 119), that,
“If no person shall appear within the time aforesaid, the probate or rejection of such will shall be binding, save to infants, married women, persons absent from the United States, or of unsound mind, a period of one year after their respective disabilities are removed.”
“When any will is exhibited to be proven, the court may immediately receive the proof and grant a certificate of probate, or if such will be rejected, issue a certificate of rejection.”
This statute would seem to contemplate that the will was admitted to probate at the time the court performs the judicial act of admitting it, and not on a subsequent date when the order may be filed in the clerk’s office. The case of the Matter of Parsons’ Estate, 159 Cal. 425, 114 Pac. 570, is very much in point. In that case the order admitting the will to probate recited that it was made on the 4th day of May, 1908. It was not filed, however, until May 12th following. On May 7, 1909, a contest was instituted. The statutes of California provide that a contest of a will must
“The order admitting the will to probate is in the usual form, is signed by the judge and declares that it was ‘done in open court this 4th day of May, 1908.’ The certificate of the judge attached to the will bears the same date. These certainly constitute ample evidence that the will was admitted to probate on that date. -The certificates of filing show that both documents were filed on May 12, 1908. This does not prove that the order was not made on May 4th, or that it was not made until M!ay 12th. The filing by the cleric of an order signed by the judge is not an essential or necessary part of the making of an order, or of the admission of a will to probate. It is well settled that such order need not be signed or filed. The proper record thereof is in the minutes of the court. If the entry in the minutes is considered a necessary part of the making of such order the point would not aid the appellant, for the transcript does not show when it was entered. If the clerk has performed his duty, as we must presume he did in the absence of any evidence to the contrary, he entered the order in the minutes immediately after it was made. However this may be, upon this appeal and upon this record we must consider as conclusive the recital in the order appealed from, which has the effect of a finding, that the proofs upon the hearing showed that the will was admitted to probate on May 4, 1908. The contest, being filed more than a year thereafter, was unauthorized and the proceeding was properly dismissed.”
Inasmuch as the contest in the present case was not instituted within the year provided by statute, and the court thereby failed to acquire jurisdiction, it presents a proper case for the authorization of a writ of prohibition. Let the writ issue as prayed for.
Crow, C. J., Ellis, and Morris, JJ., concur.