Dunsmuir v. Coffey

[138]

LORIGAN, J.

Alexander Dunsmuir died on or about the thirty-first day of January, 1900, in the city of New York. On the twenty-fourth day of February following his will was presented for probate to the supreme court of British Columbia at Victoria and was there duly admitted to probate. On the twenty-sixth day of April of that year an authenticated copy of the will, together with an authenticated copy of the decree admitting it to probate in British Columbia, was filed in the superior court of the city and county of San Francisco, with a petition for the probate of the will and for letters testamentary thereon. After due notice the will was admitted to probate. The administration proceedings were regular, and culminated in a decree of final distribution and the discharge of the executor. Under the will and by the decree the estate was distributed to James Dunsmuir, a brother of the deceased and petitioner herein. In the regular proceedings upon administration it is declared that Alexander Dunsmuir at the time of his death was a resident of the city and county of San Francisco. The decree of distribution upon the question of domicile declares “that the said testator, Alexander Dunsmuir, died on the 31st day of January, 1900, at the city and county and state of New York, and at the time of his death he was a British subject and a resident of, and domiciled at, Victoria, British Columbia, but temporarily residing in the city and county of San Francisco, as appears from the evidence both oral anl documentary introduced upon the hearing of the petition for distribution. ’ ’ The decree in the matter of the estate was entered upon June 4, 1901. Shortly thereafter James Dunsmuir, executor under the will, was finally discharged, and the administration was thus closed. Nearly five years after the will had been admitted to probate, and four years after final distribution and discharge of the executor, the superior court of the city and county of San Francisco, in which the will had been admitted to probate, upon motion of Edna Wallace Hopper, made its order vacating and annulling the order admitting the will to probate. While this order was made by the same court,—that is to say, the superior court in probate,—it was actually given by another judge than the one who had five years previously allowed probate of the will. Application in

certiorari

was made to this court to review this order vacating