Estate of Dolbeer v. Gray

BEATTY, C. J.

On July 7th, inst., Adolph Schander, who is appealing from a decree of the superior court admitting to probate the will of Bertha M. Dolbeer, filed his verified petition for leave to prove certain exceptions to rulings of the court which, as he alleged, the judge thereof had refused to

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allow in accordance with the facts. An order was thereupon entered allowing the petitioner to make proof of the alleged exceptions and referring the matter to the chief justice “to take the testimony in reference to the exceptions alleged in said affidavit to have been reserved by the contestant and the circumstances under which the same were taken and to report the result of his proceedings.”

At the time agreed upon the parties appeared before the chief -justice and much evidence was heard in relation to the exceptions specified in the petition. During the hearing the petitioner sought to prove some exceptions additional to those specified in his petition, but the chief justice held that he had no authority under the order of reference to take proof of such additional exceptions, and the petitioner subsequently —on July 14th—-made the present application to the court for leave to amend his original petition by adding thereto certain specifications of other rulings and exceptions which he alleged the judge has refused to allow in accordance with the facts.

For the reasons following we think the application should be denied. The proceeding is under section 652 of the Code of Civil Procedure, which reads as follows: “If the judge in any ease refuse to allow an exception in accordance with the facts, the party desiring the bill settled may apply by petition to the supreme court to prove the same. The. application may be made in the mode and manner, and under such regulations as the court may prescribe; and the bill, when proven, must be certified by the chief justice as correct, and filed with the clerk of the court in which the action was tried, and when so filed it has the same force and effect as if settled by the judge who tried the cause.”

This court has never made any formal rules governing applications to prove exceptions, and so far as the mode of procedure is concerned the practice has been sufficiently liberal. As to the extent of our powers the construction of this section has been rather strict.