The San Francisco call., 1905-03-28
Cofey Annuls For
mer Proceedings
in His Court.
GIVES REASON
Says Original VIII
Should Have Been
Filed Here.

The first skirmish in the local courts
over the millions Of the late Alexander
Dunsmuir has resulted in a significant
victory of Edna Wallace Hopper, the
petite and talented stepdaughter Of the
deceased. Judge ]. V Coffey Of the
probate department Of the Superior
Court granted the prayer Of Mrs. Hop
per that all proceedings taken in the
courts Of San Francisco in May. 1900.
be declared null and void, the prayer
being based on the contention that the
proceedings were void upon their face,
inasmuch as a copy of the decedent's
last viii and testament, instead of the
original instrument, formed the basis
thereof. The original will in question
vas carried TO Victoria, B. c., and
there fled for probate by James Duns-
muir, brother Of decedent and sole de-
Visee Of his estate. Under Judge Cof-
fey's decision. Of yesterday this will
must now be taken from the records
Of the British Columbia courts and fled
in this city for probate as was so siren
uously contended for by ]. c. Camp
bell, Mrs. Hopper's counsel-in-chief.
On its face it would appear that such
sction in itself is radical or of far
reaching effect, but appearances are
deceptive. The fact is that the filing
OF the original viii in this city will en-
able Mrs. Hopper 10 institute {. contest
under the more favorable laws of Cal
ifornia and the ultimate disposi-
tion of the estate will be here deter
mined The portion Of the estate claim
ed by Mrs. Hopper is that which would
fall 10 her mother, Mrs. Josephine
Dunsmuir, late widow of the maker of
the contested will.
FAR-REACHING EFFECT.
5udge Coffey's appreciation of the
far-reaching effect of his decision is
made plain by him. In acting upon the
case he was unguided by precedent, and
this fact made him reluctant to proceed
as he did, considering the fact that
mis- ruling would make it possible for
other estates involving millions to be
brought into litigation on the same
points. proceeding in such estate in
3 the courts Of California heretofore be-
ing regarded solely as ancillary. Re
garding this phase of the case, Judge
Corey says:
The court has been reluctant from the first
70 a favorable view Of q proceeding instituted
sfeer years OF apparent laches and acouies-
cence In en- act 50 solemn as a formal judg-
ment affecting vast property rights. but where
such judgment or order is void upon its face
IL does not appear that in California there
Is any time limit within which such a
deciosd that judgment void upon its face may
b vacated at any time upon notion and this
seems be such case.
The suggestion Of counsel for opponent that
IN the case at bar the party aggrieved should
have recourse TO bill in equity the only
appropriate remedy is not tenable. If this mo
g ti9h be well based. for here where the error
was committed, il should be corrected. and the
complainant should not be remitted TO another
forum while relief may be had in probate.
RESIDED IN THIS CITY.
The entire weight of the point
raised by Edna Wallace Hopper to
transfer the probate proceedings from
British Columb bia to this city rested on
the point as 10 whether or not the le-
gal residence of the late Alexander
Dunsmuir was in this city. Attorneys
for James Dunsmuir contended that
California was not the recidence of
the deceased and that he never con-
sidered il to be his legal place of dom
lclle. Judge Coffey, however, finds