In re the Estate of Hudson

Myrick, J. Henry C. Hudson, a resident of Hew Jersey, died in that State December 6, 1871; his will was admitted to probate, in that State, December 28, 1871, and on the 28th of April, 1872, an exemplified copy was admitted to probate in this State. William H. Brokaw received letters testamentary in Hew Jersey, and C. C. Burr in this State. The will bequeathed to the present petitioners, residing in Hew Jersey, §4,700, to persons residing in San Francisco, §4,100, and to other persons, §5,300. The remainder, if any, after the payment of debts and legacies, was to go to the widow of deceased. In January, 1874, the administration in this State being completed, the Probate Court, after finding that the estate here in the hands of the executor was equivalent in value to §13,914.08, [456]after paying all debts and the legacies to persons residing in California, and was community property, and that there was then in the hands of the executor in New Jersey abundant property to satisfy the legacies to persons residing out of California, and all debts to persons residing out of this State, and the expenses of administration, distributed the residue in this State to the widow of deceased, Mary Hudson; and on the production of her receipt the executor here was discharged. In 1880, more than six years after the distribution and discharge, the petitioners presented their petition, asking that the decree of distribution and the discharge be set aside, and that a sufficient sum of the California assets be turned over to the New Jersey executor to pay the balances of the legacies now left unpaid. The petition avers that ten per cent of the legacies have been paid out of the New Jersey assets. It appears by the petition that on a settlement of the accounts of the New Jersey executor there remained in his hands $5,441.63.

The petitioners aver that certain of them, acting for themselves and others, addressed letters to Burr, before and after his application for distribution, regarding the progress of his administration, and received information except as to the proceedings for distribution. It thus appears that they had actual knowledge of the administration here, and could before distribution have made such application as would have been necessary to protect their rights. It appears that they relied upon Burr, and they complain that he misled them.

The petition was demurred to (after due service upon them of citation) by the said Mary Hudson and C. C. Burr, upon the grounds that the court had no jurisdiction of either of them, or of the subject-matter of the petition; all other grounds of objection were waived.