In Re Estate of Baker

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 432 This is an appeal by Will D. Gould, as executor of the last will of Samuel F. Baker, deceased, and also as residuary legatee, under said will, from a judgment of the lower court revoking a previous order of that court admitting said will to probate. *Page 433

Samuel F. Baker died on May 8, 1912. His will was admitted to probate by an order of the superior court made on May 24, 1912. The decedent left as his surviving heirs at law his brother Horace Baker, his sister Julia F. Baker, and his sister Mary J. Farrand. On May 23, 1913, said Mary J. Farrand filed her petition to revoke the probate of said will, alleging as grounds of contest that the testator at the time of making the same was of unsound mind, and that he was acting under the undue influence of the said W.D. Gould. After filing the said petition and while it was pending, in February, 1914, Mary J. Farrand died. Thereupon Gould, as executor of the will, moved to dismiss the proceeding on the ground that the right to contest the will did not survive the death of the heir. The motion was granted and judgment of dismissal given accordingly. From this judgment an appeal was taken to this court, in which the court determined that the proceeding to contest the will did not abate by the death of the contestant, but that the right to contest survived, and that the prosecution thereof could be continued by the personal representative of the contestant, and the judgment dismissing the cause was reversed. (Estate of Baker, 170 Cal. 578, [150 P. 989].) Thereafter, in the court below, Julius V. Patrosso, as administrator with the will annexed of the estate of Mary J. Farrand, was substituted as contestant, and the cause proceeded to trial, resulting in the judgment setting aside the probate of the will, from which the present appeal is taken.

I. Mary J. Farrand was not a resident of the state. Upon the filing of her petition for revocation Gould, as executor, demanded that she file the undertaking for costs required of nonresident plaintiffs by section 1036 of the Code of Civil Procedure. Thereupon the undertaking required by that section was given, it being signed by two persons as sureties, each of whom made the affidavit required by section 1057 of the Code of Civil Procedure, respecting his property. Gould thereupon filed a paper stating that he excepted to the sufficiency of the sureties upon said undertaking, and that he required that said sureties justify as sureties in the manner provided by law. The sureties did not justify, except by the affidavit aforesaid, attached to the undertaking. Within ten days thereafter Gould moved the court to dismiss the proceeding on the ground that the contestant had not caused the *Page 434 sureties on said undertaking for costs to justify as such sureties. The court denied the motion. On the trial the appellant renewed the objection and moved to arrest the proceedings on the ground that there had been no justification of the sureties upon the undertaking for costs. The objection was overruled and the court proceeded with the trial. The appellant assigns these rulings as error. They are without merit. Section 1036 does not authorize a proceeding of the character here attempted against the sureties on an undertaking for costs filed by a nonresident plaintiff. It provides that if the security provided by the undertaking is insufficient, the court may order a new or or additional undertaking. It does not authorize the sufficiency of the sureties to be questioned by way of exception and justification. That method is provided with respect to some classes of undertakings, such as appeal bonds, injunction bonds, undertakings upon which a corporation is the sole surety (Code Civ. Proc., secs. 529, 948, 1057a), and some other classes of undertakings. But with respect to an undertaking for costs given by a nonresident plaintiff, no such method of procedure is provided, and the only remedy, if the security is insufficient, is that provided by section 1036 The appellant did not resort to that method. Consequently his motion was properly denied and his objection was properly overruled. We are not to be understood as intimating that in any event the failure to give additional security when properly ordered by the court below would operate to deprive that court of jurisdiction of the cause. Section 1037 provides that when an order is made for additional security, as provided in section 1036, and none has been given, the court after thirty days may dismiss the action or proceeding. It does not follow that the court is bound to dismiss it, or that if it refuses to do so its further proceedings therein are without jurisdiction and void.