Bailey v. Gates

This is not a suit to contest a will after probate, but one to revoke the probate of a will upon the complaint of certain nonresident heirs of the testator, upon the ground that the court was without jurisdiction of the parties plaintiff, in that the petition filed for the probate of the will in question did not expressly mention the plaintiffs as known or unknown heirs; that plaintiffs had no notice, actual, constructive or otherwise of the probate proceedings; that they did not learn of the decree admitting the will to probate until a long time thereafter, they being nonresidents of Nevada and residents of the State of Massachusetts. The complaint further alleges that the plaintiffs being without notice and situated as they were, they were deprived of their property without due process of law. The complaint also alleges that the plaintiffs held valid and subsistent objections to the admission of the will to probate, in that at the time of its execution the testator, Alexander Pollock, was of unsound mind and incapable of making testamentary disposition of his property; that May Frances Gates, the sole beneficiary of the will well knowing the mental condition of the testator, fraudulently took advantage thereof, and induced and compelled him to execute the purported will, and that the will was made and executed under her domination and direction.

The probate of a will by a court having jurisdiction thereof is considered as conclusive as to its due execution and validity, and is also conclusive that the testator was of sound and disposing mind when he executed the will, and was not acting under duress, menace, fraud or undue influence. Tracy v. Muir, 151 Cal. 363, 90 P. 832, 121 Am. St. Rep. 117; State v. McGlynn, 20 Cal. 233, 81 Am. Dec. 118; Woerner Am. Law of Administration (3d ed.), 767, 28 R.C.L. 377. It is conceded, however, by these authorities that the power to revoke exists in the court itself in all cases where the court acted without jurisdiction, without notice where the statute requires notice, or in disregard of some statutory requirement so that the decree or judgment rendered is void.

It is contended in support of the allegations of the complaint that the failure of the petition for the probate of the will to give the names and residence of the heirs of the testator deprived the court of jurisdiction to admit the will to probate. Sec. 5860, Revised Laws. This contention is untenable. The jurisdiction of the court to admit a will to probate "cannot depend upon either the petitioner acting in good faith or bad faith in omitting the names of the heirs from the petition." Nicholson v. Leatham, 28 Cal. App. 597, 153 P. 965, 155 P. 98. This decision is predicated upon a statute similar to that of ours relating to a petition for probate. Sec. 5860, Revised Laws.

Though the complaint alleges that plaintiffs had no notice, actual, constructive or otherwise, of the probate proceedings, it is admitted in argument that notice for the hearing of the petition was published by the clerk of the court, as provided in section 5866, Revised Laws, quoted in the opinion of Justice COLEMAN.

There seems to be no doubt that when the notice of the presentation for probate is made by publication, and conforms to the requirements of the statute, no other or further notice is required to give the court jurisdiction for the purpose. In Re Kelly (Neb.), 172 N.W. 758, 175 N.W. 653; Re Sieker, 89 Neb. 216,131 N.W. 204, 35 L.R.A. (N.S.) 1058, and cases cited in note entitled "Right to probate will on service of notice by publication."

The contention that the parties plaintiff were deprived of their property without due process of law is also untenable. A notice of application for the probate of a will, given by publication for a period of ten days, as provided by statute, does not operate, as to a nonresident heir having no actual notice and so situated as not to be able to receive the notice in time to appear and contest the probate on the original hearing, to deprive him of his property without due process of law. Tracy v. Muir, supra.

I am of the opinion that the complaint herein fails to state a cause of action for the revocation of the probate of the will of the testator, Alexander Pollock, deceased.