In re Estate of Twombley

VAN FLEET, J. The appeal is from an order refusing to revoke the probate of the last will of deceased and the grant of letters testamentary thereon, made upon demurrer sustained to the petition.

The order admitting the will to probate was made and entered by the then probate court of Alameda county, on the fifth day of May, 1879. The petition for revocation was filed August 26, 1896—more than seventeen years thereafter. The sole ground urged for a reversal is that it appears from the averments of the petition that the probate court never acquired jurisdiction to admit said will to probate. This proposition is founded upon the fact, alleged in the petition, that no copy of the notice of the time appointed for the probate of the will was served, as [351]required hy the statute, either hy mail, or personally, upon petitioner and the other heirs of the testatrix resident within the state; and that there is no proof on file, or order of the court showing such service. And it is argued that by reason of this fact the order admitting the will to probate was and is void.

It is to be observed that every presumption, not upset by the record itself, is to be indulged in support of the regularity and validity of the order. This presumption of regularity applies alike to the orders and decrees of the late probate courts, made within the limits of their restricted powers, as to proceedings of courts of general jurisdiction. (Irwin v. Scriber, 18 Cal. 499; Burris v. Kennedy, 108 Cal. 331, 337.)

The petition with the exhibits attached thereto shows that the wiB, accompanied by a petition for its probate stating the necessary jurisdictional facts, was duly filed in said probate court, and an order regularly made fixing a time for the hearing, and directing notice of the hearing to be given by publication, as required by the statute; that proof of the publication of the notice was duly made by the affidavit of the publisher, and that thereafter the court proceeded at the tipie designated to hear the application for probate, and upon such hearing made the order which it is sought to have vacated. These proceedings sufficiently show that the court acquired jurisdiction in the premises. (Irwin v. Scriber, supra; Will of Warfield, 22 Cal. 64; 83 Am. Dec. 49.) It is true the record does not show affirmatively that the notice of probate was served either by mml ¿r personally, but the statute did not require that fact to appear of record, the requirement being simply that proof of the fact “must be made at the hearing.” (Code Civ. Proc., sec. 1304.) While the record does not show that such proof was made, neither does it show that it was not, and in such case the presumption is that the necessary proof was made. The rule in this respect is, that where the record recites that which was done nothing to the contrary may be presumed; but where the record is silent the presumption is that that was done which was requisite to sustain the jurisdiction. (Hahn v. Kelly, 34 Cal. 391; 94 Am. Dec. 742; Black on Judgments, sec. 284.) And in the absence of any showing of fraud this presumption is conclusive.