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District Court of Appeal, First District, Division 2, California.

IN RE: ESTREM'S ESTATE. SANGUIN et al. v. HILL, Public Administrator.

Civ. No. 11388

Decided: April 18, 1940

Joseph L. Lewinson, Donald Armstrong, A.L. Abrahams, Harry G. Sadicoff, and Morris E. Cohn, all of Los Angeles, for appellants. Ralph E. Hoyt, Dist. Atty., J.F. Coakley, Chief Asst. Dist. Atty., and Owen E. Hotle, Jr., Deputy Dist. Atty., all of Oakland, for respondent. Morrison, Hohfeld, Foerster, Shuman & Clark, of San Francisco, Frank J. Hogan, Wellborn, Mitchell, Barrett & Rodi, Frederick D. Anderson and Bertram L. Linz, all of Los Angeles, and Robinson, Price & Macdonald, of Oakland, amici curiae in support of respondent.

On August 16, 1937, the superior court in and for the county of Alameda, state of California, Honorable John J. Allen, Judge, made and entered its order admitting to probate a will of one Jean Estrem dated August 13, 1930. The order found that notice had been regularly given according to law of the time and place of hearing of the petition for probate of said will, that the decedent died on May 28, 1937, in Belgium, that at the time of his death he was a resident of the republic of France, and that he left estate within the counties of Alameda and Fresno, state of California. Continuing the order provided: “Ordered, adjudged and decreed that the said document heretofore filed, purporting to be the last will of said deceased, be and it is hereby admitted to probate as such; that Edward R. Eliassen be and he is hereby appointed executor thereof and that letters testamentary issue to him upon his taking the oath required by law, no bond being required by law, no bond being required under said will.” No appeal was taken from that order and the time for appeal has long since expired.

Edward R. Eliassen, duly qualified as such administrator, commenced said administration, and continued to discharge such duties until his death on February 10, 1939. Thereafter, on February 14, 1939, Albert E. Hill, public administrator of Alameda county, was appointed special administrator. He duly qualified and is now so acting.

On January 5, 1939, appellants, certain devisees, filed in said probate proceeding in Alameda county their notice of motion to set aside and annul said order of August 16, 1937, admitting the will to probate and to recall and cancel the letters testamentary issued to Edward R. Eliassen as executor of said will. After several continuances the motion of appellants came on for hearing before the superior court for Alameda county on March 23, 1939, and on May 10, 1939, the judge of that court made and entered an order denying the motion of appellants. From the order denying the last-mentioned motion the said devisees have appealed.

The appellants contend the motion made in the probate proceeding to set aside the order admitting the will of the decedent to probate was a direct attack on such order, and the superior court was in duty bound to consider extrinsic evidence to ascertain whether the order was void. As will hereinafter appear we are of the opinion that the order under attack was not void on its face. If it was void on its face it could be attacked at any time. The appellants do not claim that the order was obtained through their “* mistake, inadvertence, surprise, or excusable neglect”. However, we understand they claim that by reason of certain things the order was obtained by fraud. If so they could attack it by making a motion in the probate proceedings. Young v. Fink, 119 Cal. 107, 50 P. 1060. True such motion is a direct attack. Parsons v. Weis, 144 Cal. 410, 415, 77 P. 1007. However, the appellants were bound to make that attack within a period of time not extending “* beyond the limit fixed by section 473, Code Civ.Proc.” Young v. Fink, supra [119 Cal. 107, 50 P. 1061]; Smith v. Jones, 174 Cal. 513, 515, 163 P. 890.

In their next point the appellants contend the order dated August 16, 1937, was void because the Alameda superior court had no jurisdiction whatever over the estate of a resident of France who died leaving no property in Alameda county. If such facts appeared on the face of the judgment roll that contention would have merit, but the respondent's petition recited that the decedent left property in Alameda county. The allegations of that petition fixed the jurisdiction of said court and not the facts, whatever they were, which subsequently developed. Estate of Helm, 6 Cal.App.2d 752, 755, 45 P.2d 250.

The third point made by the appellants is that the order was void because the jurisdiction of the California courts was limited to following the authentic record of the court of the domicil and admitting the will established by that court as the last will and testament of the decedent. Whatever may be the rule in other jurisdictions the contention of the appellants is not supported by the law of the state of California. Section 301 of the Probate Court provides: “Wills must be proved, and letters testamentary or of administration granted and administration of estates of decedents had, in the superior court: * (3) Of any county in which he leaves estate, the decedent not being a resident of the state at the time of his death, and having died out of the state *.” Section 301 of the Probate Code was copied from section 1294 of the Code of Civil Procedure, and no change was made material to the issues before us. As to the meaning of section 1294 of the Code of Civil Procedure, in Estate of Clark, 148 Cal. 108, commencing on page 110, 82 P. 760, on page 761, 1 L.R.A.,N.S., 996, 113 Am.St.Rep. 197, 7 Ann.Cas. 306, the court said: “Section 1294 of the Code of Civil Procedure declares: ‘Wills must be proved and letters testamentary or of administration granted: (1) In the county of which the decedent was a resident at the time of his death, in whatever place he may have died.’ ” And, on page 112, of 148 Cal., on page 761 of 82 P., 1 L.R.A.,N.S., 996, 113 Am.St.Rep. 197, 7 Ann.Cas. 306, the court said: “Recognition would be given to the indisputable principle that every state has plenary power with respect to the administration and disposition of the estates of deceased persons as to all property of such persons found within its jurisdiction. Thus the courts of a state may and do grant original probate upon wills of deceased nonresidents who leave property within that state. In California this is expressly provided for by section 1294, supra, and the rule as to other states is the same. 1 Woerner's Adm. *439; Shields v. Life Ins. Co., 119 N.C. 380, 25 S.E. 951; Gordon's Case, 50 N.J.Eq. 397, 26 A. 268; Putnam v. Pitney, 45 Minn. 242, 47 N.W. 790, 11 L.R.A. 41; Walton v. Hall's Estate, 66 Vt. 455, 29 A. 803; Jaques v. Horton, 76 Ala. 238.” Then, on the application for rehearing, on page 125, of 148 Cal., on page 767 of 82 P., 1 L.R.A.,N.S., 996, 113 Am.St.Rep. 197, 7 Ann.Cas. 306, the court said: “The fact that in this state, as in other states and countries, wills of nonresidents are admitted to probate on original proceedings for the purpose of administering upon their property within the state is no impeachment of this proposition. In such cases it is the property within this state and subject to its jurisdiction which constitutes the res, and proof of the will is allowed as a mere incident or means of determining the disposition of that property. And the decree which has only that purpose is conclusive only to that extent. It binds that property here and everywhere that the decrees of our courts are accorded full faith and credit, whether by comity or by force of the federal Constitution. But such a decree is not binding as to the will itself in other jurisdictions where the decedent may have left property, and still less is it binding upon the courts of his domicile. It is not conclusive in other jurisdictions, simply because, as a will and for all purposes, it has not been duly proved and allowed. It has been proved and allowed so far as it affects the disposition of the property within the particular jurisdiction, but no further.” In Estate of Edelman, 148 Cal. 233, at page 239, 82 P. 962, 964, 113 Am.St.Rep. 231, the court said: “It may, however, be added that the court had jurisdiction to grant original probate of the will of the deceased, although a nonresident, since she had left property within this state. Estate of Clark [148 Cal. 108] 82 P. 760 [1 L.R.A.,N.S., 996, 113 Am.St.Rep. 197, 7 Ann.Cas. 306].” The appellants cite and rely on Dunsmuir v. Coffey, 148 Cal. 137, 82 P. 682; Estate of Dunsmuir, 149 Cal. 67, 84 P. 657; Estate of Reynolds, 217 Cal. 557, 20 P.2d 323; Estate of Sankey, 199 Cal. 391, 249 P. 517. No one of those cases is of the least help in deciding the point we are discussing. It is conceded by both parties that these matters are largely, if not wholly, statutory. Therefore authorities from other jurisdictions are not necessarily controlling. However, in other jurisdictions there are authorities directly in line with the statement quoted from the Estate of Edelman, supra. In re Holden's Estate, 110 Vt. 60, 1 A.2d 721, 119 A.L.R. 487, and cases collected in note page 492.

The last point made by the appellants is that without regard to the facts shown by the record as originally made up, the superior court had jurisdiction to hear and determine the motion because the facts showing the order was void were not only admitted but made a matter of record by respondent's procedure. In other words the appellants contend the rule stated in the matter of the Estate of John Ivory, Cal.App., 98 P.2d 761, is controlling in the instant case. That contention they predicate on the recitals contained in the inventory and appraisement. That document was filed January 3, 1938. An examination of its contents does not disclose that any item of personal property was or was not in Alameda county on the date of the death of the decedent. It is recited that two different certificates of corporate stock and a promissory note payable to the decedent in the principal sum of $2,000, dated June 17, 1922, came into the possession of the executor. The appraiser marked “nil” as the value of each item. The inventory included two parcels of land located in Fresno county, one of the value of $4,000 and one of the value of $2,400. We think it is obvious that such facts are not even akin to the facts on which the decision in the Estate of John Ivory, supra, was based. See Smith v. Jones, 174 Cal. 513, 517, 163 P. 890.

In what we have just said we have assumed that the entire record was before the probate court and is before this court on appeal. However, an examination of the record does not disclose that the appellants made any motion in the probate court or if they did that they presented to said court any evidence whatever in support of their motion.

The order appealed from is affirmed.


We concur: NOURSE, P.J.; SPENCE, J.

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