The San Francisco call., 1896-03-20

Justice Paterson and Mr.. Justice Harrison
The last sentence is: ''While it has been held
IN many cases that an administrator cannot ap-
peal from q decree OF distribution because he has
no interest in the final judgment, whatever 1t
may be, yet that principle is in no sense
analogous TO the right OF an executor to sup
port q will, especially SO when it has been once
probated." The executor has no right TO sup
port the will. That right may become more
binding upon him, because he may feel surer
OF his ground when the will has been probated,
put the right to support the will which nomi-
mates him as executor is as perfect before as it
is after probate he has the right to support
it and in supporting it of course he has the
right to repel all attacks hich would over
throw it. yx
In reply Mr.. Pierson seontended that
there was no reason for going out of Cali
fornia to look for citations. In his concep-
ton the better course would be to seek for
precedents in the reports of cases decided
in accordance with the statutes governing
such matters in this State Other States,
he said, had laws, in many instances
widely variant from those of California;
and hence decisions rendered in the courts
of those States were not always to be taken
as final in courts here.
Regarding the matter of the two wills,
Mr.. Pierson was very emphatic in insist
ing that the court had no option as to the
admission of the will of September II, 1894.
On tie ex parte proof already submitted,
he contended that that will, though not
the last made by the testator, was in view
of the rulings of the court undoubtedly
entitled to be admitted to probate.
Garret McEnerney, representing Trus-
tee Goodfellow, one of the executors OF the
will of the 21st of September, concurred in
Mr.. Persons view, citing a number of
California cases in support of that posi-
tion.
Judge Slack then rendered his decision
as follows:
l have examined all those authorities last
evening. They were all cited on the argument
that took place here OH another occasion. 1
am conversant with the case of Hathaway's
will, in Ohio ST., because 1 examined it last
evening; and also with the case from 33 Ala
bama, Blakely VS.. Blakely's heirs think
calling upon Mr.. Delmas further in the matter
As say, have examined all of the authori-
ties that have been cited by counsel upon the
previous occasion when this question was pre-
sented and the authorities that were cited the
other day,I have taken great pains to go over
them also. / have also taken the pains to ex-
is, to make an independent examination,
and find that counsel have gone
over the ground so thoroughly, that there is
no authority one way or the other to be found,
except 1T is in Schouler's executors, and pos
sibly counsel have found that also, but have
not referred to it, because the only authority
which that author cites is not decisive, or does
scarcely support his proposition. The au-
thor in section II says that "contests may
arise over the probate of conflicting testament
ary papers, each of which has been propounded
Hero the object being to ascertain which, if
either or any of them, embodies in testament.
ary form the last wishes of the deceased. proof
OF the instruments of latest date comes first in
order. A similar rule applies where the va
lidlty of particular codicils is in dispute" AS
1 say. the only authority which he cites in sup
port of that. proposition is that of Lister W.
Smith, 3 Swabey and Tristan, So. However,
1t is hardly supported there.
Counsel very we'll know tina this COURT upon
the other occasion when the question was pre-
sented, expressed its views to the effect that
formal contest should be filed to the applica-
ton to admit the will of September 81 to pro-
bate, or else the court intimated it would pro-
ceed TO hear the application. Upon looking
over what transpired in those proceedings, !
find that the main question that was argued
was the question as to striking from the calen-
the will of September 21 The otE sr ovcstion
was not elaborately argued 1t is t. uc that
some of the authorities recently cited were
cited upon that occasion, but only few OF
them, apparently. 1t seems to me that the pro-
ponents of the will of September 81 overlook
the fact that the filing of the Will of September
"a is in measure a contest-not perhaps
contest in the sense in which this term is used
in the code. An opposition would be the more
correct term to use.
The will purporting to be executed on Sep
tember "a was filed in the same proceedings in
which the will of September 81 was fled 1t
would seem to me that the duty of the court
in the premises, independently of any sug-
gestion from counsel, is to proceed with the
hearing of the application to admit to probate
the will OF later date, as being the orderly and
correct mode of procedure. As suggested in
the case of Hamilton's will, in Connelly's
reports, a case to which l think the court dio
not give sufficient consideration when the
matter was up before, if q will of earlier date
is admitted to probate and will of later date
is fled, it is the duty of the court to enter an
order revoking the probate which has been
granted the earlier will, unless the probate of
the later will is denied. That is the pro-
cedure that is indicated there. 1t is true
it was not necessary for the court to express
itself In the terms in which it did express ITSELF
but it seems that that is the procedure where
will OF earlier date is admitted to probate
That certainly is the proper procedure, to pro-
ceed with the will of later date when the will
of earlier date has not at all been admitted to
probate.
Suppose should admit to probate the will OF
he 21st upon the argument that has been had,