McCrea v. Haraszthy

By the Court: 1. The first question for consideration is as to whether the Probate Court had jurisdiction to admit the will of Galbraith to probate, and issue letters testamentary thereon to Hayes. The will, naming Hayes and others as executors, had come to the custody of the court, and Hayes had filed a petition in due form, praying that it be admitted to probate, and that letters testamentary issue thereon to himself. The court, on the 20th of July, 1854, by order duly entered on the minutes, fixed the 31st day of that month as the time for hearing the application, and directed notice thereof to be given by publication in a proper newspaper, designated in the order, according to the statutes. It is argued that the order was void, because it did not designate how often per week the publication should be made; that it did not mention the number of insertions of the notice to be made per week, in the newspaper designated. The order, as we have seen, directed the publication to be made according to the statutes. The statute (Acts 1851, p. 449, Sec. 13), provided in terms that the publication in such a case should [149] be not less than twice a week, and the order in this respect referring on its face to the statute, was substantially an order in the terms of the statute. We think, therefore, that the order was sufficient; and it appearing that the publication was duly made pursuant to the order and the provisions of the statute, to which it referred, the Probate Court, so far forth, had jurisdiction to entertain the petition. 2. It is further objected, however, that no service of a citation was effected upon Caperton, who was also named in the will as an executor, and who did not unite in the petition, nor in anywise become a party to the proceedings. But it is sufficient upon this point to say that it does not appear that Caperton was at the time a resident of the county of San Francisco, and that unless he was such a resident at that time no such service upon him was required. (Section 15.) The fact of his residence in the county of San Francisco at the time the proceedings in probate were had would not be inferred for the purpose of invalidating these proceedings, from the mere circumstance that he had been mentioned in the will itself as being then a resident of that county; and especially would this be so where, as here, for aught that appears, a great length of time may have elapsed since the publishing of the will and the institution of proceedings to admit it to probate—the date of the publication of the will by Galbraith hot appearing in the record before us. It is proper to observe, however, that we have so far assumed, rather than .decided, that the failure to cite Caperton, even had he been at the time a resident of the county of San Francisco, would have been jurisdictional in its consequences. It is not necessary in the view already expressed, to determine that question. 3. It is next urged that the order of July 20, 1854, entered at length in the minutes of the Probate Court, fixing a day for the hearing of the application to admit the will of Galbraith to probate, and directing notice thereof to be given by publication, was void, because the minutes were not signed by the judge of that court. And section two [150] hundred and eighty-seven of the act of May 1, 1851, is cited in support of this position. That section is as follows: “Section 287. All orders and decrees made by the Probate Court during its terms shall be entered at length in the minute-book of the court, and also all orders which the probate judge is empowered to make out of term time, and which, by this act, are especially required to be so entered. Upon the close of each term, the judge shall sign the minutes of the proceedings.” We think, however, that the statute, while unquestionably providing for the signing of the minutes, is directory merely. It is entirely silent as to the consequences to follow upon the failure of the judge to sign the minutes as , therein provided, and in this respect it is essentially different from the statute of March 16, 1850, under consideration in Wells v. Stout (9 Cal. 497), relied upon by the appellant. That statute read as follows: “It shall be the duty of the clerk of the District Court to draw up each day’s proceedings, at full length, and the same shall be publicly read in open court, and corrected when necessary. After which they shall be signed by the judge thereof; and no process or execution shall issue on any judgment or decree of the court until it has been so read and signed.” It was accordingly held in that case that a sheriff’s sale made by virtue of an execution issued upon a judgment not signed by the district judge was void. The statute of 1850 contained negative words, and forbade the enforcement of any judgment of the District Court until it had been first signed by the judge. But in the act of May 1, 1851, now under consideration, no such consequence, nor indeed any consequence whatever, is attached by the statute to the failure of the judge to sign the minutes of the Probate Court. The distinction between the two statutes in the respect indicated, is too obvious, upon settled rules, to require discussiou. We think, therefore, that the proceedings of the Probate Court in question here, in admitting the will of Galbraith to probate, and issuing letters testamentary thereon to Hayes, were not invalid or void for lack of jurisdiction. 4. Nor have we been able to discover that Hayes has yet [151] been discharged of his trust. The statute of May 1, 1851, section two hundred and seventy-nine (substantially in this respect like the statute now in force), provides that when the estate has been fully administered, and it shall properly appear that the executor has paid all sums of money due from him, etc., “the court shall make a decree discharging him from all liability to be incurred thereafter.” No such decree in the estate of Galbraith appears to have been yet made by the Probate Court. The mere allowance of the final account appearing to have been made, obviously is not the legal equivalent of such a decree. Such an account allowed does not even import all the conditions prescribed by the statute, as the prerequisites of a decree discharging the executor and terminating his trust. But if it did, the decree duly entered, would still be necessary for that purpose. Until the entry of such a decree, the trust still continues iu contemplation of law, and the executor remains clothed with the duty and authority of his office. Nor is any decree of distribution shown to have been entered in the Probate Court. The allowance of the final account of the executor is not a decree of distribution, nor the legal equivalent of such a decree; and this for the same reasons already mentioned in reference to a decree in terms discharging the executor from his trust. It results from these views that the plaintiff, being a devisee of Galbraith, cannot maintain this action. (Meeks v. Kirby, 47 Cal. 168, and cases there cited.) Judgment and order denying a new trial affirmed.)