McCrea v. Haraszthy

By the Court: 1. The first question for consideration is as to whether the Probate Court had jurisdiction to admit the will of Galbraith to probate, and issue letters testamentary thereon to Hayes. The will, naming Hayes and others as executors, had come to the custody of the court, and Hayes had filed a petition in due form, praying that it be admitted to probate, and that letters testamentary issue thereon to himself. The court, on the 20th of July, 1854, by order duly entered on the minutes, fixed the 31st day of that month as the time for hearing the application, and directed notice thereof to be given by publication in a proper newspaper, designated in the order, according to the statutes. It is argued that the order was void, because it did not designate how often per week the publication should be made; that it did not mention the number of insertions of the notice to be made per week, in the newspaper designated. The order, as we have seen, directed the publication to be made according to the statutes. The statute (Acts 1851, p. 449, Sec. 13), provided in terms that the publication in such a case should [149]be not less than twice a week, and the order in this respect referring on its face to the statute, was substantially an order in the terms of the statute. We think, therefore, that the order was sufficient; and it appearing that the publication was duly made pursuant to the order and the provisions of the statute, to which it referred, the Probate Court, so far forth, had jurisdiction to entertain the petition.

2. It is further objected, however, that no service of a citation was effected upon Caperton, who was also named in the will as an executor, and who did not unite in the petition, nor in anywise become a party to the proceedings. But it is sufficient upon this point to say that it does not appear that Caperton was at the time a resident of the county of San Francisco, and that unless he was such a resident at that time no such service upon him was required. (Section 15.) The fact of his residence in the county of San Francisco at the time the proceedings in probate were had would not be inferred for the purpose of invalidating these proceedings, from the mere circumstance that he had been mentioned in the will itself as being then a resident of that county; and especially would this be so where, as here, for aught that appears, a great length of time may have elapsed since the publishing of the will and the institution of proceedings to admit it to probate—the date of the publication of the will by Galbraith hot appearing in the record before us. It is proper to observe, however, that we have so far assumed, rather than .decided, that the failure to cite Caperton, even had he been at the time a resident of the county of San Francisco, would have been jurisdictional in its consequences. It is not necessary in the view already expressed, to determine that question.