In re the Estate of Sbarboro

McKee, J. This appeal is from certain orders and a judgment entered in a proceeding for revocation of the probate of the last will and testament of G. Sbarboro, deceased.

Proceedings for the revocation of the probate of a will must be commenced in the court in which the will was proved, within one year after the probate. (§ 1327, Code Civ. Proc.) If the validity of the will or its probate be not contested within that time, the validity and probate become final and conclusive upon all parties interested in the estate, except infants and persons of unsound mind. (§§ 1333, 1908, Code Civ. Proc.) • Proceedings for contesting the probate of a will are a suit in the nature of an action by parties interested in the estate against the administrator, with the will annexed, or the executor of the [7]will, the legatees, devisees, and heirs of the estate, and they are commenced by filing a petition in the court in which the will was proved. A petition is filed by delivering it to be filed to the officer of the court who is entitled to receive it for that purpose, and to the custody of it after it has been filed. The clerk of the court below was the only person entitled to the custody of the petition. As custodian of the papers of a cause, he was, therefore, the only person to whom the petition could have been presented for filing, and when presented it was his duty to receive and indorse it filed. As matter of fact the petition in the case was delivered to the clerk of the court for filing about nine o’clock A. M. of the 3d day of December, 1879; but the decree of the court admitting the will to probate had been entered on the 2d day of December, 1878, and the “year” within which the probate could be contested had run at midnight of December 2, 1879; therefore the petition was not filed in time, and the validity of the will and its probate became final and conclusive upon the petitioners —there being no legal disabilities. However, the clerk indorsed the petition as follows: “Filed by order of court Dec. 2, 1879.” But the indorsement was made on the 4th day of December, 1879, under the following order made by the court on the same day: “ It is by this court ordered that the clerk of this court mark the said petition filed as of December 2, 1879, and that he make and enter the said order as of the same day.” That order was made upon proof to the satisfaction of the court that between the hours of seven and eight o’clock P. M. of December 2,1879, the petition, before it was filed or presented to the clerk for filing, had been presented to the judge of the court at his private residence, for an order for the issuance of a citation upon it, and for the purpose of examining it, so as to determine whether the petitioners were entitled to the order, the judge retained the petition in his possession until the morning of the 3d day of December, 1879, when he took it to the office of the clerk of the court, and about nine o’clock A. M. on that day delivered it with his order for the issuance of a citation thereon, to one of the deputy clerks of the court, in the clerk’s office, and verbally directed him to file the same as of the 2d day of December, 1879; but the clerk did not, at the time of receiving the petition from the judge, file