People ex rel. Vantine v. Senter

By the Court,

Shafter, J. This is a petition for a writ of prohibition to the County Judge of the County of Santa Clara, restraining and prohibiting him from exercising probate jurisdiction in the matter of the estate of George Harlan, who died intestate on the 8th of July, 1850.

It is insisted op behalf of the petitioner that the estate of Harlan is not subject to administration under the Probate Act . of 1850, in force at the date of Harlan’s death, for the reason that no proceedings were taken under that Act prior to its repeal, May 1st, 1851, (Acts of 1851, p. 489,) for the settle-[505]meat of the estate; and it is further insisted that the estate is equally unaffected by the Act of 1851, that Act being, as is claimed, prospective and not retroactive in its operation.

The counsel for the petitioner relies, in support of these positions, upon Grimes v. Norris, 6 Cal. 621; Tevis v. Pitcher, 10 Cal. 477 ; .De la Guerra v. Packard, 17 Cal. 193 ; Soto v. Kroder, 19 Cal. 87; and Downer v. Smith, 24 Cal. 114.

It is to be observed that the owners of the estates referred to in those decisions all died before the organization of the present State Government, -while in the case at bar the death was not only subsequent to that event, but occurred while the Act of 1850 was in full operation. It is true that the Court, in the cases cited, say, generally, that the Act of 1851 is not retroactive; still nothing can be considered as having been adjudged by those cases except that estates, the owners of which died under the Mexican system, were not within the purview of the Act. The particular question raised upon this record is now presented for the first time in the Court of last resort.

The Mexican system was superseded in this State by the adoption of the common law on the 13th of April, 1850. (Acts 1850, p. 219.) But the common law method of administration on the estates of persons deceased was opposed in some of its features to the principles upon which our institutions are based and to our long settled habits of public action ; and, furthermore, it must necessarily have failed here for the want of the needful agencies to conduct it. Hence the Probate Act of 1850.

We consider that the Legislature intended that all estates whose owners had deceased prior to the passage of the Act, and subsequent to the abrogation of the remedial system of the Mexican law, should be settled according to the method of the Act. To that extent at least the statute was intended to be retroactive. The intention could not have been that this class of estates should be closed out according to the Mexican method, for the Mexican system had been superseded