Norton, J. delivered the opinion of the Court—Cope, J. concurring. The minor children of Preston Warfield, by them guardian, presented to the Probate Court a petition setting forth the death of said Warfield, and that his last will was on file in said Court; that as appears by the files and records of the Court, certain proceedings were once instituted therein as if toward and preliminary to the probate of said will, and that on the thirty-first day of May, 1853, the testimony of a subscribing witness touching the execution of the will, and of other witnesses touching the residence, decease, and estate, were reduced to writing, subscribed and sworn to, and that on the same day it was ordered by the Court that letters testamentary on the said estate issue to the executor named in said will, which letters were subsequently revoked on account of the negligence and misfeasance of said executor. The petition then sets forth various irregularities and defects in said proceedings, the most important of which are the allegations that no petition for the pro[63]bate of the will was presented to the Court, and no order made admitting the will to probate, or any certificate of proof made or attached to the will. The petition then prays that said proceedings may be adjudged to be null and void, and that the will be produced by the Clerk and be admitted to probate.
Lewis E. Morgan presented a petition to the Probate Court asking leave to intervene in this proceeding for his interest, alleging that under an executor’s sale heretofore made he became the purchaser of certain real estate, which sale was confirmed by the Court on the twenty-fourth day of September, 1853, pursuant to which sale he received a deed and entered into possession of the land, and is now in possession of the same. He was allowed to intervene.
After hearing the proofs of the parties the Probate Court made an order denying the prayer of the petition of said minor children. From this order said petitioners have appealed.
Whether the decision of the Probate Court was correct or erroneous depends upon the fact whether or not the will of the deceased had been previously probated.
If the Probate Court in the proceedings formerly had in relation to this will acquired jurisdiction of a proceeding to probate the will by the presentation to it of a proper petition for that purpose, and the publication of notice of the time of proving the will, and did afterwards in such proceeding admit the will to probate, that determination was final except upon a direct proceeding by appeal or otherwise to reverse it, and cannot be questioned in any collateral proceeding. (Elliott v. Piersot, 1 Pet. 328; Thompson v. Tolmie, 2 Id. 157; Voorhies v. Bank U. S., 10 Id. 449; Jackson v. Cronfords, 12 Wend. 533.)
Although the petition in this case contains a prayer that the former proceedings may be adjudged void, this is not a direct proceeding to set aside a probate of the will. The object of the present proceeding is to have the will admitted to probate upon the assumption that it has never been probated, and not to set aside a probate of the will for defects or irregularities in the proceedings. Whether the will has been heretofore probated is a question collateral to the petitioners’ right to have it now probated in the present [64]proceeding the same as it would be if the heir should have brought an action of ejectment against the person holding under the executor’s sale of the real estate. The plaintiff in such an action could not render it a direct proceeding to revoke the probate by alleging that the proceedings to probate the will, under which the defendant claimed to hold, were irregular and void.
The first question, then, to be considered, is whether a sufficient petition for the probate of the will was presented to the Court in the former proceedings. Such a petition is not now among the papers on file in the Probate Court. If it was presented it has been lost or destroyed or abstracted. For the proof of such a petition having been presented the intervener has resorted to secondary evidence. The existence and contents of a record or other document to show the regularity of legal proceedings may, if the original be lost or destroyed, be shown by secondary evidence the same as in regard to any other lost instrument. (Jackson v. Cullum, 2 Blackf. 228; Newcomb v. Drummond, 4 Leigh. 57; Jackson v. Crawford, 12 Wend. 533; Ames v. Soy, 12 Cal. 11.) The secondary proof offered consists principally of an order entered in the minutes of the Probate Court under date of April 15th, 1853, of certain entries of the same date in an “account book” kept by the Clerk of said Court, an affidavit of the publication of a notice or order, with a copy of the order annexed, and the testimony of the executor named in the will. The order referred to is in the following words:
“ In the matter of the last will and testament of Preston War-field, deceased.—Order for issuance of letters of special administration.
“ On filing the will of deceased, and on petition of Ivory M. Blood, it is ordered by the Court that letters of special administrar tion do issue to said Blood, on filing a bond in the sum of $1,500 ; and it is further ordered that notice be given to all persons interested to come forward at the Court room on Saturday, thirtieth April, 1855, at 10, a. m., and show cause, if any they have, why letters of general administration should not issue to the said executor.”
The entry in the account book is, with other items, as follows:
“ Preston Warfield, 276. Ivory M. Blood, Executor.
[65]“ 1853—April 15—Will and petition filed for special administration. Filing and Certificate, 3; Order, 1; Filing, etc., 1 50 ; $5 50.
“ Dft. no. for pub., 3.”
The copy of notice or order annexed to the affidavit of publication was as follows:
“ State of California, County of San Francisco, Probate Court.— Notice is hereby given to all persons interested in the estate of Preston Warfield, late of the City of San Francisco, deceased, to show cause, if any they have, on Saturday, the twenty-ninth day of April instant, at ten o’clock, A. M., at the Court room of the Probate Court, in the City Hall, in the City of San Francisco, why the last will and testament of said Warfield should not be admitted to probate, and letters testamentary issued to Ivory M. Blood, who is named in the said will as the executor thereof. Witness, Honorable Alexander Campbell, Probate Judge, this sixteenth day of April, a. d. 1853.
“ Attest: Jambs E. Waintoight, Clerk.
“ 0. Bailey, Deputy Clerk.
Indorsed “ Filed May 31,1853.”
The witness Blood testifies that he took the will to the Probate Court and deposited it with the Clerk, and then adds: “ I think there was a petition for probate of the will. Messrs. Burritt & Gorham drew one up and I swore to it before the Clerk. I got Messrs. Burritt & Gorham, attorneys, to conduct proceedings to have the will probated. I came here into Court and swore to this petition. I think it was left here, but cannot tell what else it contained, but the object was to have the will probated.” Upon cross-examination, he said: “ Why I think the petition I have mentioned was for probate of the will is because I was at considerable trouble to ascertain the names, ages and residence of the widow and heirs which Burritt & Gorham said it was necessary to state in the petition. I do not remember about more than one petition.” The will itself is found in the Probate Clerk’s office, indorsed “ Filed April 15th, 1853.”
No evidence is given by either party that there is any petition on file in the Probate Court Clerk’s office, which could be the one [66]referred to in the above mentioned order and entry in the account book.
These proofs are sufficient to show that a petition relating to the estate of the deceased was presented to the Probate Court on the fifteenth day of April, 1853, and we think they also show that the petition was for a probate of the will as well as for letters of special administration. The executor, Blood, testifies that he employed a firm of lawyers “to conduct proceedings to have the will probated.” They required him to furnish certain information as to the names, ages, and residence of the heirs which was appropriate to be inserted in a petition for that purpose, but immaterial in one for letters of special administration. They prepared a petition, which he swore to before the Clerk of the Probate Court. The will was filed in the Probate Court on the same day with this petition. The law (Stat. 1851, 449, Secs. 5, 6) requires the executor to present the will to the Probate Court, and requires that if he intends to accept he shall present with the will a petition praying that the will be admitted to probate and that letters testamentary be issued to him. On the same day an order is entered, setting forth that on fifing the will of deceased, and on petition of Ivory M. Blood (who was the executor named in the will) two things are ordered: first, that special letters issue; and, secondly, that notice be given to show cause why letters of general administration should not issue to the said executor. The fifing of the will and the petition of the executor are stated as the grounds for making each of these orders. In effect the order states that the petition prayed that notice be given to show cause why general letters of administration should not be issued to the executor. But, as we have seen, the petition for general letters is required to be presented in connection with the petition for probate of the will. Such letters to the executor only issue upon, and as a consequence of the probate of the will. (Stat. 1851, 452, Sec. 41.) Notice of probating the will is required to be given (Sec. 13), but no notice is required specifically of application for letters. They issue, as above stated, as the consequence of the probate of the will. A notice of probating the will involves a notice that letters will issue upon the probate to the executor. We are not now considering [67]what is the exact legal effect or meaning of this order, but what it indicates was the prayer of the petition. That the clerk who entered this order was more likely to have employed a brief expression, which he deemed the equivalent of the prayer of the petition, rather than that the lawyers who drew the petition should have omitted the prayer for the principal thing required by the law, and only inserted the prayer for the incident, is indicated by the circumstance that the clerk, in the title of this order, denominates it only as an order for the issuance of special letters of administration, when the order itself shows that it was also for the more important purpose of obtaining general letters. This circumstance is also applicable as explanatory of the brief entry in the account book: “ Will and petition filed for special administration.” Sufficient only was stated to identify the order, rather than to show its whole contents. In connection with this entry, and of the same date, is the entry: “ Dft. no. for pub.” But no notice was necessary on an application for special letters only. (Secs. 88, 89.) There is then found in the Clerk’s office of the Probate Court, an affidavit of publication of a notice filed on the thirty-first day of May, 1853. The notice is dated the next day after the filing of the petition and the entering of said order for publication; and the notice requires cause to be shown at the same time and place specified in that order; and the cause to be shown is, “ why the last will and testament of said Warfield should not be admitted to probate, and letters testamentary issue to Ivory M. Blood, who is named in the said will as the executor thereof.” This is evidently a copy of the notice specified in the order and referred to in the abbreviated entry in the account book, and being found filed in proceedings in the case may be properly considered as secondary evidence in determining the character of the petition which was filed. It was a notice of the probate of the will issued upon the filing of the will and a petition of the executor in the Probate Court. Considering what the law required an executor to do upon presenting a will to the Probate Court, that the executor employed lawyers (who should be presumed to know the law) to conduct proceedings to have the will probated, and the foregoing evidence of what was done, we think it was proved that the petition filed on [68]the fifteenth day of April, 1853, was for probate of the will and for general letters of administration, as well as for letters of special administration.
It was proved that of the lawyers who drew the petition, and who are the only persons who would be likely to remember accurately its contents, one is dead and the other out of the State. Under these circumstances, when it is considered that it was proved that it was the object of the petition to procure the probate of the will, that the testator was dead when the petition was presented, and that he resided in the County of San Francisco at the time of his death, and that the petition was drawn by lawyers whose business it was to prepare such papers and to know what they should contain, and that the petition was presented to the Court which was authorized to take jurisdiction of the matter in case the existing facts were stated, and that the Court did take such jurisdiction and take proof of the execution of the will and issue letters testamentary, and order and approve the sale of real estate by the executor, we think it should be presumed, after the lapse of eight years, in behalf of the regularity of the proceedings and on the facts proved, that the petition contained a statement of the necessary jurisdictional facts. (Posten v. Rassette, 5 Cal. 467; Collier v. Corbett, 15 Id. 183.)
Upon the filing of the petition the order above mentioned was entered, that notice be given to all persons interested to show cause why letters of general administration should not issue. The notice published was to show cause why the will should not be admitted to probate. To have been strictly in form the order should have fixed a time for the probate, and directed notice of that time to be published, and the notice published should have been of the time fixed for probating the will. But the order and notice, in the form in which they appear, were substantially equivalent to the order and notice prescribed by the statute. A notice was given, in effect, to all parties interested, of the time and place of probating the will. It does not appear that the will was probated on the day specified in the notice, nor that the probating was adjourned from that day to the day when it was in fact done. But this was, at most, an irregularity, occurring after jurisdiction had been acquired, and [69]could only be objected to on a direct proceeding to set aside the probate.
It might, perhaps, be claimed that the presentation of the -will to the Probate Court, with a proper petition for the probate, was sufficient to give jurisdiction, and that thus all informalities and irregularities in fixing the time of probate, and in giving notice thereof, would fall within the class of subsequent errors which might render the proceedings voidable, but not void. This point, however, we do not find it necessary to decide.
Having concluded that the Probate Court acquired jurisdiction of the proceedings by the presentation to it of a proper petition for the probate of the will, and by publication of notice of the time fixed therefor, the next inquiry is, whether the will was in fact probated. It is objected that there is no judgment or decree, or its equivalent, of the probate. There is no provision in the statute which requires or contemplates that a formal judgment or decree that the will is admitted to probate, or is proved, should be entered. But Sec. 24 requires that if the Court be satisfied upon the proof taken that the will was duly executed, a certificate of the proof, signed by the Probate Judge and attested by the seal of the Court, shall be attached to the will; and by Sec. 25, the will and certificate of proof, together with the testimony which has been taken, are required to be filed and recorded. The certificate required by Sec. 24 was not made. Was it indispensable to render the proceedings a probate of the will ? The actual probating of the will consists in taking the testimony of the witnesses to its due execution, and by Secs. 23 and 25, that testimony is required to be reduced to writing and signed by the witnesses, and filed and recorded with the will and certificate. The expression “ a certificate of the proof,” as used in Sec. 24, is ambiguous. It is not necessarily a certificate that the will was duly proved, but might be considered only a certificate of what proofs were taken. Still it is not to be made, unless the Court is satisfied that the will was duly executed and its absence unexplained, and especially, if no subsequent proceedings were taken in the case, as upon a probated will, might properly be considered as showing that, in the judgment of the Probate Court, the testimony did not prove the due execution [70]of the will. The testimony taken, and which was reduced to writing, and signed by the witnesses, and filed in the Probate Court Clerk’s office, was the proper proof, and sufficient to prove the due execution of the will. On the same day it was taken an order was entered that letters testamentary issue, which order begins with this statement: “ And now on this day Ivory M. Blood comes into Court, and on the testimony of L. L. Barrett and J. J. Lathrop, proves the execution of the will of deceased as now of record.” This is a judgment entered in the minutes of the Court that the will is proved. Although not a formal and separate judgment of this one fact, but stated prehminarily to the order that letters issue, yet it is not in the form of a mere recital of what had been done, but is a direct statement that the executor now proves the execution of the will. On the same day letters testamentary were issued under the seal of the Court, by which, after reciting in the usual form of a recital that the “ will having been proved and recorded in the Probate Court,” etc., Ivory M. Blood is appointed executor. These facts abundantly show the understanding of the Court that the will was probated. It also appeared from an examination of the “ Book of Wills ” kept in the Probate Court that from the organization of the Court in 1850 to February 19th, 1855, seventy-eight wills were therein recorded, to none of which was any certificate of proof attached, and that no such certificate was found attached to any will before the date of May 21st, 1855. This is clear proof that it was the understanding of the Judges of the Probate Court at the time the proof of the execution of this will was taken, that such a certificate was not essential to a probate of a will. In the case of Hazard v. Martin (2 Vt. 77), in deciding as to the validity of a sale of real estate by an administration which was not ordered by the Surrogate Court, the Judge says: “ The statute is so vague in its requisitions, were I sure there was a general understanding in the Probate Courts at that period that no such matters should exist or should appear of record, but that the administrator might deed without an order, I would not at this late day decide the titles void that were acquired under views of this kind entertained by those who then administered the laws, and for which titles a full and Iona fide consideration was paid.” To decide that the [71]want of the certificate in this case was a fatal defect in the evidence of the probate of the will would in effect declare void the probate of every will made in the County of San Francisco during the period of five years from the establishment of the Probate Court. We do not think we are required by the facts of this case or authorized so to decide. Courts feel themselves constrained to uphold, where it is possible, eotemporaneous interpretation of statutes, under which interpretation rights of property have for many years been acquired. (Panaud v. Jones, 1 Cal. 448, and cases cited at 499; Rogers v. Goodwin, 2 Mass. 477; see also Stuart v. Laird, 1 Cranch, 299.)
Our conclusion is, that the evidence shows that the will in question was duly probated before the institution of the present proceedings.
Various objections and exceptions were taken by the appellants to the admissibility of evidence, but they related mostly to the proof of facts bearing upon the regularity of proceedings subsequent to the presentation of the petition, and were immaterial in this collateral proceeding. The other proofs bearing upon the presentation and character of the petition, to which objections were taken, were admissible as scondary evidence.
The order appealed from is affirmed.
AI Brief
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Holding. The court held that the probate of the will was valid and that the current petition to probate the will was a collateral attack on a prior, final probate proceeding. The court further held that secondary evidence was admissible to establish the existence of a lost petition and that the absence of a formal certificate of proof did not invalidate the probate under the contemporaneous interpretation of the law.
Issues
Whether the prior probate proceedings were sufficient to establish jurisdiction and a valid probate of the will.
Whether the current petition constitutes a direct or collateral attack on the prior probate proceedings.
Whether secondary evidence is admissible to prove the contents of a lost petition for probate.
Whether the absence of a formal certificate of proof renders the probate of a will void.
Disposition. affirmed
Quotations verified verbatim against the opinion
“The existence and contents of a record or other document to show the regularity of legal proceedings may, if the original be lost or destroyed, be shown by secondary evidence the same as in regard to any other lost instrument.”
“Our conclusion is, that the evidence shows that the will in question was duly probated before the institution of the present proceedings.”