Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1890-03-29
OF INTEREST TO BoNDsMEN.

d, W. Earl Must Settle for the Delin-
quency of an Executor.
The next case of Importance decided by the
Court was that OF Ferris Jewett Moore VS..
D. W. Earl, the history of which is about
as follows: The plaintiff is a young man
residing in Amherst, Mass. His father was
at one time well-known resident of Sac
ramento and died in 1S6S, leaving a will
in which he named his friend c. W. Hath
away as executor. Hathaway was at that
time a prominent and wealthy citizen
Judge Clark, of the Probate Court. directed
that he tile bond as executor in the sum
OF $4,000 This he did, and procured the
late John Mcneil and the defendant. D.
w. Earl, 10 sign as bondsmen. The plaintiff
was at that time an infant only ten months
old.
Nothing further was heard of the matter
until the summer OF 1889, when the plain
tit, who had become of age. had the &C.
counts OF the executor reopened and q set
tlement had, by which the Court decreed
that Hathaway was indebted TO the heir
IN the sum of So 81 81. Time had
made sad ravages in Mr.. Hatnaway's for
tune, however ard the heavy Judgment
against him is unbelievable, except through
the sGreties, who are bound, as stated, only
in the sum of Sc GOO The present action.
therefore, was brought TO recover from Mr..
Earl that amount
The Court briefly reviewed the history of
the case, and then said
One defense sought to be made to this pro-
ceeding is that the Probate Court of therounty
OF sacramento never acquired jurisdiction of
the estate nor of the executor and for that rea-
son all the subsequent proceedings were void;
and that the order settling the account would of
course taIl. The defense is also interposed that
motion for new trial was taken in the mat
ter OF the settlement OF the account
have examined the numerous authorities
cited by counsel on both sides and have come
10 the conclusion, without any hesitation, that
under the circumstances the defendant Hath
away and the defendant Earl are not in a posi
ton to urge the objection they make upon the
ground that the Probate Court never acquired
jurisdiction. In the first place the order and
decree OF the Probate Court, admitting the will
70 probate, recites upon its face that that Court
did take the necessary steps TO ACQUIRE iurisdic-
ton OF the various parties interested in fine
estate particular objection was made that it
qua not appear from the record that that Court
hau 9roered ana required citation to be
served upon the heirs resident within the
county. Il is manifest from an inspection of
the record that no such order appears, but the
decree, which was the final outgrowth of the
application TO probate the will, recites that in
accordance with the order OF the Court cita-
lions had been issued and duly served upon the
nelrS resident in the county, and to all the par
yes interested. This being a collateral proceed
ing, am satisfied that that recital in the decree
cannot be attacked by intrinsic evidence
AL the amendments run in favor of the
validity and regularity of the proceedings of the
PROBATE Court. which at that time appertained
70 Court OF general jurisdiction. Whatever
doubt there might have been upon that point
was ooviated by an Act OF the Legislature
passed IL 1913, which provided that the same
amendment should be INDUCED in in favor of
the legality of the proceedings of Probate Courts
as those OF Courts of general Jurisdiction. l am
sstlsned from the authorities that this presump.
ton is conclusive as against collateral attack.
ana the defense on that ground cannot prevail.
nave also examined the question growing
Out OF the alleged tendency of motion for a
new trial and am satisfied that that is not
defense in this case.
FROM these conclusions, judgment will go in
favor OF the plaintiff as prayed for.