In re Estate of Howard

Cope, C. J. delivered the opinion of the Court, Norton, J. and Crocker, J. concurring. This is an appeal from a judgment of the Probate Court of the City and County of San Francisco. The only question raised is whether the will of the deceased was properly probated, so as to give the Court jurisdiction of the estate. The petition of the executors, presented with the will, and praying its admission to probate, omits to state that the testator died in the County of San Francisco, and this omission is supposed to be fatal to the proceedings. It is claimed that the petition should have set forth the facts necessary to give the Court jurisdiction of the case, and that the admission of a will to probate upon a petition defective in this respect is void.

We have made a careful examination of the provisions of the statute under which the will was probated, and we are of opinion that no petition was required as the foundation of the proceeding. Sec. 4 of the statute (Wood’s Dig. 372) provides that “Any person having the custody of any will, shall, within thirty days after he shall have knowledge of the death of the testator, deliver it into the Probate Court having jurisdiction of the case, or to the person named in the will as executor.” Sec. 5 provides that “Any person named as executor in any will shall, within thirty days after the death of the testator, or Avithin thirty days after he has knoAvledge that he is named as executor, present the will, if in his possession, to the Probate Court which has jurisdiction.” Sec. 6 provides that “ If he intends to decline the trust, he shall at the same time file his renunciation in writing; 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.” Sec. 13 provides that “ When any aylII shall have come into the possession of the Probate Court, the Court shall appoint a time for proving it,” etc.

It is obvious that neither of these sections contemplates the pre[398]sentation of a petition as the means of giving the Court jurisdiction, and it is only in the case of an executor who intends to accept the trust that a petition is required. It is required in such case, however, not for jurisdictional purposes, but as information to the Court of his willingness to accept the trust; and so far as the jurisdiction is concerned, its presentation is an immaterial matter. The jurisdiction depends upon certain facts, which, on receiving the will, the Court must inquire into and determine, and the mere possession of the wiil vests the Court with ail the authority necessary for that purpose. In the present case, the proof shows that the will was presented to the proper Court, and we are of opinion that its admission to probate was regular and valid.