In re Miller

Wallace, J., delivered the opinion of the Court, Rhodes, C. J., Crockett, J., and Sprague, J., concurring:

The Probate Court of the City and County of San Francisco (having obtained the possession of an authenticated [554]copy of the alleged will of the deceased, purporting to have been admitted to probate in the proper Court of the State of Nevada) appointed a time for proving the will, pursuant to Section 28 of the Probate Act of this State, and directed “that notice thereof be given by the Clerk by publication for not less than ten days in the ‘Daily Examiner,’ a newspaper printed and published daily in said City and County of San Francisco ”—which notice was accordingly given in pursuance of the order. Upon the appointed day, the application for probate coming on to be heard, objection was made that George Miller, the father and heir at law of the decedent, resided without the limits of the State of California, and that no notice of the hearing of the application for probate had been published in the State Paper of the State of California, to wit: the Sacramento Pep or ter, and that, therefore, the Probate Court had not acquired jurisdiction to entertain the application for probate. The Probate Court sustained the objection thus made, and entered an order dismissing the application, and from this order the appeal is taken.

We are of opinion that the Probate Court erred in dismissing the application on the ground stated. We think that notice of an application to admit to probate an alleged will under Section 13, or a copy of such will, with an authenticated probate thereof under Section 28 of the Probate Law of this State, is not “a summons, notice, or advertisement * * * required to be published as against a non-resident or against a party who may be or is supposed to be absent from, or concealed in the State, whose residence is unknown,” within the intent of Section 3 of “An Act authorizing the publication of certain legal notices in a State Paper, ” etc. (approved March 29, 1870), and that publication of such notice is, therefore, not required by law to be made in the “State Paper.”

It results that the notice, as published, was sufficient to enable the Court to proceed to hear the application before it.

The order is, therefore, reversed, and the cause remanded.

Temple, J., being disqualified, did not participate in the decision of this cause.