In Re the Estate of Edwards

HENSHAW, J.

The petitioner, in seeking letters of administration upon the estate of the deceased, set forth facts which indisputably entitled her to such letters, if the deceased died intestate. Upon this matter she alleged that deceased left a purported will, executed in due form, with certain codicils thereto; that the will and codicils were on file with the court. She then averred that at the time of the attempted execution and publication of the will and codicils, the deceased was insane and not of sound and disposing mind and memory, and that therefore he died intestate. Contest over the issuance of the letters was joined, upon the ground that the petition for letters disclosed the fact that instruments testamentary in character and executed with the formalities required by law were on file with the court, that they had not been presented to the court for probate, that no adjudication of their validity or invalidity had been made, and that by reason of the existence of these instruments, not as yet offered for probate, the court had not jurisdiction to determine the petition for letters of administration. After hearing the court so ruled and denied the petition for letters, and upon appeal the single question presented may be thus stated: Where it is made to appear that an instrument testamentary in character and executed with the formalities required by law has not been offered - for probate, may a court, upon application for general letters of administration, hear and determine the question of the validity or invalidity of this instrument, and, as it shall determine, grant, or refuse to grant general letters of administration; or does it become the duty of the court, upon such a showing, to postpone the consideration of the application for letters of administration until, in the appropriate

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proceeding provided by law for the proving of a will, the question of the validity or invalidity of the instrument shall have been determined? In effect, the latter was the course which the court adopted, and its determination we think was sound. Generally speaking, the law favors testacy to intestacy, and is zealous to see that the testamentary directions of a testator are fully complied with. Only in case of intestacy does the state distribute the property of the decedent under its laws of succession. The case here presented is one which, in the nature of things, will rarely arise. Evidence of this appears from the fact that it is the first time that it has arisen in the history of this state, and the researches of learned counsel have disclosed but two cases from other states where the matter has come before the courts. Where an instrument is in form a will, there will usually be somebody interested in maintaining its validity who will therefore petition the court to have it proved. Under our procedure such a petition seems necessary to confer upon the court jurisdiction to act (Code Civ. Proc., secs. 1299 et seq.), though under our earlier probate procedure no petition was required.