In Re Estate of Withenbury

WILBUR, J.

On November 17, 1920, appellant served and filed a petition for the revocation of the probate of the will of the deceased, probated November 24, 1919, alleging that the will was procured by fraud and undue influence. Citation thereon was issued November 30, 1920. The executor moved to dismiss the petition for revocation on the ground that no citation had been issued within one year after the probate of the will as required bs^ section 1328 of the Code of Civil Procedure. The appellant upon affidavits moved for relief from such failure on the ground of excusable neglect, and the court, after finding the facts as hereinafter stated, denied appellant "relief and ordered the dismissal of the petition for revocation. The petitioner appeals from this order.

The question for our consideration is this: Was the delay of the petitioner for more than five days after the expiration of the year from the time of the probate of the will so far justified by the circumstances found by the trial court as to require a reversal of its order denying petitioner the relief sought and dismissing the petition?

[1]

The issuance of the citation is not jurisdictional, and the trial court had the power to relieve the petitioner from the fail

[111]

ure to issue such citation within a year, if in its opinion such a failure was the result of excusable neglect.

(Estate of Simmons,

168 Cal. 390 [143 Pac. 697].)

[2]

The facts

found by the trial court and the facts relied upon by the appellant to constitute excusable neglect, briefly stated, are as follows: That J. A. Anderson, a member of the firm of Anderson

&

Anderson, appellant’s attorneys, had been absent from the office of the firm for more than two weeks prior to November 17, 1920, and had not participated in the business of said firm during that period and that the entire burden of the business and affairs of said office had fallen upon and were attended to by W. H. Anderson; that on November 17, 1920, said W. H. Anderson had just completed the trial of and was engaged in briefing two cases of importance, one of which had occupied more than four weeks in its actual trial, and was very much engrossed in that matter, and in addition thereto had a large number of matters pertaining to the business of his office, including the matter of the contest of the will in this proceeding, on his hands for disposition; that on November 17, 1920, affiant placed the petition for revocation of probate in the hands of a clerk, duly admitted to practice as an attorney at law and employed in the office of said firm of Anderson & Anderson, with instructions to file and serve the same; that said clerk has had some practice and has always proved himself to be most efficient and conscientious in the performance of all the duties assigned to him by said firm, but was unfamiliar with the provisions of section 1328 of the Code of Civil Procedure, and assumed and believed that the only service of the petition for revocation of the will necessary was service by delivery to the party or attorney for the executor under the provisions of section 1011 of the Code of Civil Procedure, and served a copy of said petition for revocation upon the executor on November 17, 1920, and thereupon filed the petition for revocation; that W. H. Anderson believed that the matter had been properly attended to and gave no further attention to the matter until November 29th, and immediately thereafter, on November 30, 1920, caused a citation to be issued and served as required by section 1328 of the Code of Civil Procedure; that said clerk had been engaged in attending to the filing and serving of various papers and records in