Flatley v. Connor

McLUCAS, J.,

pro tem.

The contestant appeals from a judgment, order, and decree overruling her objection to the admission to probate of the foreign will of the deceased and admitting the same to probate and appointing the petitioner administrator of the estate with the will annexed.

The sufficiency of the proofs of the foreign probate is the sole question presented on this appeal. The petitioner produced and offered in evidence the duly authenticated copy of the record of the probate of the will of Ellen Mahony, in the High Court of Justice (probate), the District Registry at Kilkenny, containing a copy of the will and the order or decree admitting the same to probate as required by the provisions of section 1323 of the Code of Civil Procedure. Appellant in her written opposition to the probate of the document controverted the jurisdiction of the Irish court to admit the will to probate, and now calls attention to the fact that section 456 of the Code of Civil Procedure provides in that event that “the party pleading must establish on the trial the facts conferring jurisdiction.” In support of this position appellant cites the case of

Wickersham

v.

Johnston,

104 Cal. 407 [38 Pac. 101], as authority that the pleadings, petition, and proceedings which lead up to the order admitting the will to probate should have been included in the record. In 1919 [Stats. 1919, p. 165] section 1323 of the Code of Civil Procedure was amended by changing the words in the first sentence, “When a copy of the will, and the probate thereof” to “When a copy of the will, and the order or decree admitting the same to probate.” So that the section now reads as follows: “When a copy of the will, and the order or decree admitting same to probate,

[491]

duly authenticated, shall be produced by the executor, or by any other person interested in the will, with a petition for letters, the same must be filed, and the clerk of the court must appoint a time for the hearing; notice whereof must be given, as hereinbefore provided for an original petition for the probate of a will.”

Section 1324 of the Code of Civil Procedure requires the admission of such authenticated form of will to probate in this state, and reads as follows: “If, on the hearing, it appears upon the face of the record that the will has been proved, allowed, and admitted to probate in any other of the United States, or in any foreign country, and that it was executed according to the law of the place in which the same was made, or in which the testator was at the time domiciled, or in conformity with the laws of this state, it must be admitted to probate, and have the same force and effect as a will first admitted to probate in this state, and letters testamentary or of administration issued thereon.”