Keller v. De Franklin

Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., and Bryan, J., concurred.

The appellant and respondent both applied to the Probate Court for letters of administration on the estate of Franklin,—the former as Public Administrator, the latter claiming to be the wife of the decedent. The appellant denied that respondent was the wife of Franklin. A hearing was had upon that question before the Probate Judge, who decided in her favor, and granted her the administration.

The appellant assigns for error, that the Probate Court has no jurisdiction to try and determine questions of fact, and cites and relies upon the case of Reed's Heirs v. McCormick, 4 Cal., 342.

The construction contended for would have the effect of destroying the usefulness of the Probate Court. There is scarcely a step to be taken in that Court which does not involve the decision of some question of fact, and whether an issue be taken or not, the Court has alike to determine the fact upon proofs.

There is then no greater reason for denying the Probate Judge the trial of an issue of fact than to deny him the determination of any fact which has to be proved, although not contested.

The issues of fact joined in the Probate Court, and which are to be sent to the District Court fortrial, are of that class upon which the Probate Judge is unwilling to pass his judgment, or where from great conflict of evidence a reasonable doubt must exist in his mind as to which side has the right. In such cases, a proper and just exercise of his discretion would require him to send the issue for trial before a jury in the District Court.

Rule fifty, established by this Court, requiring the Probate Judge, when an issue of fact is joined, to certify it for trial to the District [434]Court, was intended to be limited, as a matter of course, to cases proper for such action. The rule was made after the decision of Reed’s Heirs v. McCormick, and on account of the doctrine there held.

By reference to that case, it will be seen that it fully maintains the views expressed in this opinion. In that case, referring to the jurisdiction clause of the Constitution, which the appellant cites, we say:— “ The object of the provision, it seems to me, was to enable a system to be adopted by which contested issues of fact in the Probate Courts, might be> sent for trial to the District Court, upon the same principle that issues are sent out of Chancery to be tried in a Court of common law by jury.”