VAN DYKE, J., dissenting.
I dissent. The deceased, Clark, it appears, executed his will in 1872, at Keene, Cheshire County, New Hampshire, and left it in the custody of Cain & Benton, attorneys at law, in said county of Cheshire. After his death that will was sent out here and filed for probate in the county of Yolo, but before any action was taken thereon, upon the application of Mary M. Metcalf, a sister of the deceased and devisee and legatee of the estate under said will and the sole executrix named therein, for permission to withdraw said will and have the same proved in New Hampshire, the probate court of Yolo County entered the following order granting said application:—
“In the Superior Court of the State of California, in and for the County of Yolo. In the Matter of the Estate of Julius H. Clark, Deceased.
“Upon reading and filing the petition of Mary M. Metcalf, duly verified by her attorney, W. A. Anderson, and it appearing therefrom that it is to the best interests of the estate of said Julius H. Clark, deceased, and also for the best interests of the devisees of the will of the said deceased, and that it is impracticable and very expensive to probate the said will of Julius H. Clark in the state of California, and that the said will was executed in the state of New Hampshire, and that none of the witnesses to said will live in the state of California, but that they did live in the said state of New Hampshire, and that the said executrix, Mary M. Metcalf, is too feeble to come to the state of California, to apply for letters testamentary on said will, and it appearing from said petition that the said executrix desires to have said will probated in the county of Cheshire, state of New Hampshire, and
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that the said Julius H. Clark left estate in said county at the time of his death: Wherefore it is by the court ordered, adjudged, and decreed that the clerk of .the said superior court of the county of Yolo be, and he is hereby, ordered and directed to send the will of the said Julius H. Clark, now on file in his said office, to Mrs. Paul Thomson, at West Hartford, Connecticut, by express, or to deliver to W. A. Anderson, the attorney for Mary M. Metcalf, the said will to be so sent. And the clerk is hereby ordered to preserve a certified copy of said will in his said office. E. E. Gaddis, Judge.”
Indorsed: “Filed April 19, 1904. C. F. Hadsall, Clerk.”
Thereafter, on May 18, 1904, the proponent Du Bois, to whom an interest in said estate had been conveyed by said Mary M. Metcalf, devisee and legatee of the said will, filed a petition in the superior court of Yolo County for admission to probate of said will upon a duly authenticated copy thereof and its probate in the state of New Hampshire. Upon notice of said application having been given pursuant to the statute, the contestant L. J. Clark, son of the testator, and a legatee under the will, filed objections to the admission of the same upon the exemplified copy, upon the grounds, among others, that said Julius H. Clark, at the time of his death and at the date said alleged will was executed, was a resident of the county of Yolo, state of California; that said alleged will was a domestic will, and that the same could not be admitted to probate by virtue of having been previously admitted to probate by the courts of New Hampshire; that the superior court of Yolo County, state of California, had original and exclusive jurisdiction to hear an original petition to admit said will to probate; and that the courts of the state of New Hampshire had no jurisdiction to admit said will to probate, except for the purpose of carrying on an administration ancillary to that had in the state of California. Upon the hearing of the case, the superior court of Yolo County sustained the objection of the contestant upon the grounds stated, and denied the admission of the authenticated copy to probate, and from this order the appeal is taken. From the record it appears that the copy of the will was duly authenticated in conformity with the laws of New Hampshire, and that such will was valid under the laws of said state admitting it to
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probate; that all the proceedings thereon were regular, and that there was nothing upon the face of the record to dispute the jurisdiction of the court of such state admitting the will to probate; and that said will was made and executed in conformity, not only with the laws of said state, but also in conformity with the laws of this state. The question, therefore, presented is whether, in the case of a testator, who, at his death, resided in this state, a will filed for probate in this state upon a duly authenticated copy thereof from the court of a sister state, first having been duly probated therein according to the laws of said state, may be admitted to probate, or must the original will be produced here for that purpose? Section 1322 of the Code of Civil Procedure, copied in the prevailing opinion, is taken from the act of 1850 to regulate the settlement of estates of deceased persons, being section 27 of said act. (Stats. 1850, p. 377, c. 129.) The language of .the code sections bearing on the subject under consideration is plain and unambiguous, and cannot be controlled by any headlines of the chapter put there by the code commissioners. “The mere classifications can scarcely be deemed part of the law.” (Endlich on Interpretation of Statutes, see. 70.)
In the case of
Goldtree
v.
McAlister,
86 Cal. 93, [24 Pac. 801], the plaintiff sued in the character of trustee of the estate of Jonathan Thompson, deceased, under his last will. The testator was a resident of the county of San Luis Obispo, and left estate therein. His last will had been duly proved and allowed in the Queen’s Probate Court of London on the twenty-eighth day of October, 1875. His heirs and devisees were residing in this state and in England. Upon petition filed for the probate of said will from an exemplified copy thereof from said English court, the probate court of San Luis Obispo County, this state, after notice and proceedings as required by the code, admitted said will to probate in the following order: “It is ordered that the paper heretofore filed purporting to be a copy of the last will and testament of said deceased be admitted to probate as the last will and testament of said deceased; that the said John Thompson and John A. Patchett be and they are hereby appointed executors of said estate; and that letters testamentary issue to the said petitioners upon their taking the oath as required by law.” Letters testamentary were accordingly issued to John Thomp
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son and J. A. Patchett, who duly qualified. The will also appointed Thompson, Patchett, and Grierson trustees of the estate, and devised the property to them for the uses and purposes stated in the will. Thereafter, by an order of said superior court, Patchett was removed and plaintiff Goldtree was appointed in his-place. On the trial of the case the defendant objected to the introduction in evidence of the record of the California probate proceedings of San Luis Obispo County, on the ground that the probate court of San Luis Obispo County never acquired jurisdiction of the subject-matter of the probate of the will. Defendant’s objections were overruled and judgment went for the plaintiffs, which judgment on appeal was affirmed by this court in Department. Appellant filed a petition for a rehearing, and made the point that as Thompson was a resident of California at his death, his will was domestic to the state of California, and that the California court had no jurisdiction to grant ancillary or secondary probate, as was done in that case. A rehearing was granted, and appellant filed additional points and authorities upon the rehearing in Bank, in which it is said: “Admittedly Jonathan Thompson was a resident of California at his death. It follows that his will, if any he left, was not a ‘foreign’ but a domestic will—domestic to the state of California. . . . The English court had no jurisdiction to grant original probate of a will domestic to this state. The California court alone had such jurisdiction. The California court had no jurisdiction to grant auxiliary or secondary probate of the will in question.” And appellant’s counsel especially relied upon the point of want of jurisdiction in the probate court of this state in the premises, and this question seems to have been fully presented to this court on the rehearing. In the opinion upon the rehearing by the court in Bank it is said: “The judgment appealed from in this case was affirmed January 31, 1890. A rehearing was granted, and the case has been argued in printed briefs. We have carefully considered the arguments of the learned counsel for appellant on the rehearing, but find nothing in them having the effect to change the former opinion.” (86 Cal. 96, 97, [24 Pac. 801].) This case, which is the latest expression of this court on the question, seems to hold directly that a will of a resident of this state can be admitted to pro
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bate in this state on an exemplified copy of its probate in a court outside of the state.
As already shown, the will in question, upon petition, was ordered by the lower court to be withdrawn and transmitted to New Hampshire, where the deceased left property, to be there first admitted to probate. It can hardly be supposed that the court in doing this at the same time entertained the view that said will could only be admitted to probate in the first instance in Yolo County. To suppose so would be to suppose that the court set a snare to entrap petitioners so as to deprive the legatees and devisees under the will of the principal benefit resulting from the same. Under the provisions of the code, as well as upon the authority of
Goldtree
v.
McAlister,
86 Cal. 93, [24 Pac. 801], the court below clearly erred in refusing to admit the will in question to probate under the circumstances, as shown, and the order to that effect should be reversed.