Farmers & Merchants National Bank v. Superior Court

EDMONDS, J. The question presented by the application of The Farmers and Merchants Bank of Los Angeles, as executor of the estate of Jacob Kahan, for a writ of mandate concerns the jurisdiction of the probate court to proceed with the administration of his estate in the absence of proof that notice of the hearing of the petition for probate of his will was given to certain devisees residing in Ukraine, Russia. At the time the will was filed Ukraine was occupied by the armed forces of Germany, and postal and other communications with persons in that state were prohibited by the Trading with the Enemy Act (50 U.S.C.A.App. § 3, sub-sec. c).

As grounds for the issuance of the writ, the bank has alleged these facts: The petition for the probate of will included the names of the devisees thereunder and stated that two of them reside in Ukraine, Russia. A notice of the hearing of the petition was sent to these heirs by mail addressed to them in care of the Alien Property Custodian, Washington, D. C. When the petition came on for hearing, there had been filed in the proceeding a letter from the Alien Property Custodian acknowledging receipt of the notices and stating: “As provided in General Order No. 6/ the Custodian will, within sixty days, determine whether or not he will accept service of the notice.”

The custodian did not, within sixty days or at all, accept service, but almost one year after the will was admitted to probate, he entered a general appearance for the Russian devisees, and thereupon filed in their behalf a waiver of the [844]failure to comply with the provisions of section 328 of the Probate Code and the Custodian’s General Order No. 6. Following an order admitting the will to probate, the court held that it had no jurisdiction to do so and refused to. proceed further with the hearing of a petition for confirmation of a sale of property of the estate. By demurrer and answer to the petition for the writ of mandate, the respondent court asserts that the order admitting the will to probate and the purported letters testamentary issued to the bank as executor are, and each of them is, void for want of jurisdiction, but the facts alleged in regard to the administration of the estate are expressly admitted.

, Section 327 of the Probate Code provides for notice by publication of the hearing of a petition for probate of a will. By the terms of the following section, “At least ten days before the hearing, .copies of the notice must be personally served upon the heirs of the testator and' the devisees and legatees named in the will ... or mailed, postage prepaid, from a postoffice within this state,, addressed to them at their respective places of residence, if known to the petitioner, if not,.at.the county seat of the county where the proceedings are pending.” (§328.) The bank asserts that jurisdiction to admit a will to probate is obtained by the filing of the petition and the publication or posting of notice; the mailing, of copies of the notice is not mandatory and, accordingly, may be excused where useless or impossible. In any event, says the bank, the Alien Property Custodian is empowered to represent..the .Russian devisees and, as notice was mailed to and received by him, the failure to accept service is immaterial for: jurisdiction is acquired by the mailing of notice. In his brief as amicus curiae, the Alien Property Custodian states that he is properly authorized to represent aliens in enemy-occupied territory and, although he asserts that the notices mailed to him did not amount to a compliance with the terms of section 328, he argues that jurisdiction vested in the superior court upon his general appearance therein.