Nelson v. Rodolph

PEEK, J. This is an appeal from an order denying the petition of Lena K. Nelson to dismiss the proceedings in the above named estate on the sole ground of lack of jurisdiction of the probate court for the alleged reason that at the time of her death the decedent was not a resident of the State of California but resided at Klamath Falls, Oregon. By the terms of her will and the codicils thereto respondent Rodolph was named as executor and trustee; however, if at such time decedent was a resident of Klamath Falls, Oregon, then one Dola N. Clemens of that city was named to act in such capacity.

The verified petition of respondent for letters testamentary which was filed in Sacramento County on December 7, 1945, recites that decedent died on November 20, 1945, at Klamath Falls, Oregon, at which time she was a resident of Sacramento County and left property therein, and that by the terms of her will and codicils thereto he was named as executor thereof. The names, ages, relationships and residences of the heirs of decedent so far as known to petitioner were set forth as were the names, ages and residences of all legatees and devisees who were named in said will and codicils thereto.

The order admitting the will to probate recites that after “due proof being made that notice has been regularly given [433]according to law of the time and place of hearing said petition, and no person appearing to contest the said petition, the court proceeds to hear the testimony and thereupon finds the facts alleged in the said petition to be true, that the above named deceased died on November 20, 1945, and at the time of her death was a resident of Sacramento County, State of California. ’ ’ No appeal was taken from this order. On February 18, 1947, more than one year after the issuance of letters as above stated, appellant, who is named in said will as a beneficiary of the trust estate created therein, filed her petition to dismiss the proceedings. Neither proof, offer of proof nor contention was, or has been made that appellant failed to receive actual notice of the filing of the petition for letters or that she had no opportunity to attend or was prevented from attending the hearing or contest the same.

The only basis for the petition to dismiss is that when decedent died she was a resident of the State of Oregon, and as stated in appellant’s brief, therefore “there was fraud when Rollin P. Rodolph, the Executor, represented to the Court that the deceased died a resident of Sacramento County, California.” In support of her motion appellant filed affidavits of various persons wherein the affiants stated that decedent was a resident of Oregon.