McFarland, J.
Certiorari to review an order of the superior court directing a citation to issue to petitioner, the said San Francisco Protestant Orphan Asylum, in a pending proceeding for the revocation of the probate of a will.
The facts necessary to be stated are these: Edward Barron died on the twenty-fourth day of November, 1893, leaving an estate worth nearly two million dollars, and a 'will which was probated on January 5,1894. On the 9th of April, 1894, within a year after the probate of the will, George Barron, a son of the deceased, filed in said superior court a petition to revoke the probate of said will upon various grounds. The next day a citation was issued to all the legatees and devisees [445] named in the will, requiring them to appear on the 14th of May, 1894, to show cause why the said probate should not be revoked. By said will about fifteen persons were named as devisees, several of whom, including the petitioner here, the said orphan asylum, were benevolent institutions. The citation was served within the year upon all of the parties named, except the said petitioner. There was an attempted service on the petitioner, but it was served on the matron of said petitioner, who, as it ultimately appeared, was not the proper person to be served. The said contestant, George Barron, supposed that petitioner had been properly served, and his attention was not called to the fact that the service was defective until more than a year after the probate of said will, to wit, in the year 1896. There was no intention on the part of said contestant not to serve properly the said petitioner herein. The petitioner did not appear in the case until April 23, 1896. In the meantime the other persons named in the citation appeared and filed their answers, and a trial of the contest was had, which resulted in a verdict of a jury that the testator was not of sound mind, and was unduly influenced by his wife. A motion for a new trial was made and granted, on account of supposed errors committed at the trial. Thereafter, on April 23, 1896, the petitioner herein appeared for the purpose only of making a motion to dismiss the will contest, so far as it concerned the petitioner, upon the ground that there had been no service of the citation upon petitioner within a year after the admission of the will to probate. This motion was by the court denied on the eighteenth day of said April, 1896; and thereafter, on the twenty-fifth day of the same month, the superior court ordered a citation to issue to the petitioner herein, requiring it to show cause on the 12th of June, 1896, why the probate of said will should not be revoked, and such citation was accordingly issued and served. This present proceeding was instituted here for the purpose of having said order last named set aside as beyond the juris[446] diction of the court to make, because not made within, one year after the said probate of said will.
There is some contention on the part of the respondents, founded upon certain affidavits, that this proceeding should be dismissed because the petitioner is not a party aggrieved, for the reason that it has made arrangements with both parties to the contest that it shall receive its legacy of five thousand dollars in any event; but we do not think it is necessary to examine into this contention.
The code provides that a contest of the probate of a will may be commenced by a petition in writing “at any time within one year after such probate.” (Code Civ. Proc., sec. 1327.) The next section provides that a citation must be issued to certain named parties, but there is no time specifically mentioned within which such citation must be served. However, section 1703 provides that, “Except as otherwise provided in this title, the provisions in part II of this code are applicable to, and constitute, the rules of practice in the proceedings mentioned in this title”; and it is contended, upon principle and authority, that by analogy a citation must be issued and served within the time and in the manner prescribed for the issuance and service of the summons in an ordinary civil action, and that therefore a citation cannot be issued to any party after the expiration of a year. It is contended that this rule has been established by this court in the case of Bacigalupo v. Superior Court, 108 Cal. 92. But that decision is authority only in a case where after the expiration of a year from the time of the probate of the will there is neither a valid citation or petition in existence. In that case a citation had been issued, but it had been quashed, and the petition for the revocation had itself been dismissed, and it was held that the case stood as though no citation had ever been issued to anyone or served on anyone, and, indeed, as if no petition had ever been filed. The court say: “The fact that one citation was taken out within the year is immaterial, [447] for that citation was quashed and set aside and discharged, and thereafter the case stood exactly as though no citation had ever been issued.” The court further say: “Thereafter, and more than one year subsequent to the filing of said petition, it was dismissed upon, motion of this petitioner”; and that “after its dismissal it possessed no life.” It was held in that case that the court could not, after the expiration of a year, revive the petition and order another citation to issue “to all parties interested”; and the case goes upon the theory that when a year had elapsed without any service of a citation upon anyone, there could be no further proceeding in the matter.
But in the case at bar a valid petition Was filed, and a citation issued within the year to all the necessary and proper parties interested, and within the year the said citation had been served upon all the parties except only the petitioner in this present case, and upon this petitioner .there had been a defective service, and the defect had not been called to the attention of the contestant until it was brought to his attention by the motion of the petitioner herein to dismiss the proceeding. The court, therefore, had jurisdiction over the proceeding. Section 1329 provides as follows: “At the time appointed for showing cause, or at any time to which the hearing is postponed, personal service of the citations having been made upon any of the persons named therein, the court must proceed to try the issues of fact joined, in the same manner as in an original contest of a will.”
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McFarland, J.
Certiorari to review an order of the superior court directing a citation to issue to petitioner, the said San Francisco Protestant Orphan Asylum, in a pending proceeding for the revocation of the probate of a will.
The facts necessary to be stated are these: Edward Barron died on the twenty-fourth day of November, 1893, leaving an estate worth nearly two million dollars, and a 'will which was probated on January 5,1894. On the 9th of April, 1894, within a year after the probate of the will, George Barron, a son of the deceased, filed in said superior court a petition to revoke the probate of said will upon various grounds. The next day a citation was issued to all the legatees and devisees [445] named in the will, requiring them to appear on the 14th of May, 1894, to show cause why the said probate should not be revoked. By said will about fifteen persons were named as devisees, several of whom, including the petitioner here, the said orphan asylum, were benevolent institutions. The citation was served within the year upon all of the parties named, except the said petitioner. There was an attempted service on the petitioner, but it was served on the matron of said petitioner, who, as it ultimately appeared, was not the proper person to be served. The said contestant, George Barron, supposed that petitioner had been properly served, and his attention was not called to the fact that the service was defective until more than a year after the probate of said will, to wit, in the year 1896. There was no intention on the part of said contestant not to serve properly the said petitioner herein. The petitioner did not appear in the case until April 23, 1896. In the meantime the other persons named in the citation appeared and filed their answers, and a trial of the contest was had, which resulted in a verdict of a jury that the testator was not of sound mind, and was unduly influenced by his wife. A motion for a new trial was made and granted, on account of supposed errors committed at the trial. Thereafter, on April 23, 1896, the petitioner herein appeared for the purpose only of making a motion to dismiss the will contest, so far as it concerned the petitioner, upon the ground that there had been no service of the citation upon petitioner within a year after the admission of the will to probate. This motion was by the court denied on the eighteenth day of said April, 1896; and thereafter, on the twenty-fifth day of the same month, the superior court ordered a citation to issue to the petitioner herein, requiring it to show cause on the 12th of June, 1896, why the probate of said will should not be revoked, and such citation was accordingly issued and served. This present proceeding was instituted here for the purpose of having said order last named set aside as beyond the juris[446] diction of the court to make, because not made within, one year after the said probate of said will.
There is some contention on the part of the respondents, founded upon certain affidavits, that this proceeding should be dismissed because the petitioner is not a party aggrieved, for the reason that it has made arrangements with both parties to the contest that it shall receive its legacy of five thousand dollars in any event; but we do not think it is necessary to examine into this contention.
The code provides that a contest of the probate of a will may be commenced by a petition in writing “at any time within one year after such probate.” (Code Civ. Proc., sec. 1327.) The next section provides that a citation must be issued to certain named parties, but there is no time specifically mentioned within which such citation must be served. However, section 1703 provides that, “Except as otherwise provided in this title, the provisions in part II of this code are applicable to, and constitute, the rules of practice in the proceedings mentioned in this title”; and it is contended, upon principle and authority, that by analogy a citation must be issued and served within the time and in the manner prescribed for the issuance and service of the summons in an ordinary civil action, and that therefore a citation cannot be issued to any party after the expiration of a year. It is contended that this rule has been established by this court in the case of Bacigalupo v. Superior Court, 108 Cal. 92. But that decision is authority only in a case where after the expiration of a year from the time of the probate of the will there is neither a valid citation or petition in existence. In that case a citation had been issued, but it had been quashed, and the petition for the revocation had itself been dismissed, and it was held that the case stood as though no citation had ever been issued to anyone or served on anyone, and, indeed, as if no petition had ever been filed. The court say: “The fact that one citation was taken out within the year is immaterial, [447] for that citation was quashed and set aside and discharged, and thereafter the case stood exactly as though no citation had ever been issued.” The court further say: “Thereafter, and more than one year subsequent to the filing of said petition, it was dismissed upon, motion of this petitioner”; and that “after its dismissal it possessed no life.” It was held in that case that the court could not, after the expiration of a year, revive the petition and order another citation to issue “to all parties interested”; and the case goes upon the theory that when a year had elapsed without any service of a citation upon anyone, there could be no further proceeding in the matter.
But in the case at bar a valid petition Was filed, and a citation issued within the year to all the necessary and proper parties interested, and within the year the said citation had been served upon all the parties except only the petitioner in this present case, and upon this petitioner .there had been a defective service, and the defect had not been called to the attention of the contestant until it was brought to his attention by the motion of the petitioner herein to dismiss the proceeding. The court, therefore, had jurisdiction over the proceeding. Section 1329 provides as follows: “At the time appointed for showing cause, or at any time to which the hearing is postponed, personal service of the citations having been made upon any of the persons named therein, the court must proceed to try the issues of fact joined, in the same manner as in an original contest of a will.”
But the petitioner herein, the said San Francisco Protestant Orphan Asylum, being a legatee named in the will, was a necessary party to a complete determination of the controversy; and, not being before the court on account of said defective service, the court had the power,- not only under general equitable principles and practice, but under the provisions of the code, to order the said petitioner brought in as a party to that controversy. Section 389 of the code is made applicable [448] to the proceeding for the revocation of the probate of a will, and that section provides as follows: “The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but, when a complete determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.” It is contended that this section applies only to a person who was not named in the first instance as a party. Such a construction, however, is too narrow, and is incorrect. The “parties before it,” within the meaning of that section, are evidently the parties actually before the court, who had been “ brought in” either by actual service of process, or by a voluntary appearance. If the petitioner had not been named in the citation, there could have been no question as to the propriety of the action of the court below which is here attacked. But the mere naming of a person as a party in an action or proceeding, without any further attempt to bring him within “ the presence” of the court, does not make him a party before it. This meaning of the phrase “brought in” was evidently attached to it by this court in Fanning v. Foley, 99 Cal. 336. In that case Gaven, who was the owner of the fee in the land involved, “was made a defendant, but was not served with summons”; and the court say: “The owner of the fee had never been brought in by appearance or service.”
The code never intended to provide, and does not provide, that where the petition has been filed within the year, and within that time a citation has been issued and duly served upon all of numerous necessary parties except one, the contest shall utterly lapse and the rights of all contestants be entirely obliterated, because, from mistake or inadvertence, there has been a failure to properly serve that one within the year. It seems to be admitted by counsel that a decree in favor of the contestant without the presence of petitioner would be fruitless as to all the devisees named in the [449] will. That being so, the petitioner, although interested in only a small fraction of the immense estate, could, if its position be tenable, defeat a legal inquiry into the proper disposition of nearly the entire estate; and the result would be the same whether petitioner is acting solely in its own interest, or, as contended by respondent, is allowing itself to be used in the interest of others. A court should not reach such an unjust conclusion unless driven to it by the imperative language of the law; and there is no such imperative language. We think that the court below, under the circumstances herein-before detailed, acquired jurisdiction of the proceeding, and that petitioner, being a necessary party to a complete determination of the controversy, and not being before the court, could be brought in by a citation or any appropriate method.
A few authorities are cited by counsel for both parties from New York; but we do not see that any of them are particularly applicable to this case. It is true that in the Matter of Phalen, 51 Hun, 208, cited by respondent, the court, dealing with a proceeding for the revocation of the probate of a will, say that the court “ has power, where all persons who are necessary parties have not been cited or notified, to issue a supplemental citation for the purpose of bringing in such parties,” and that something of the same kind appears in Laytin's Estate, 15 Misc. Rep. 660, 37 N. Y. Supp. 1125, and Matter of Will of Gouraud, 95 N. Y. 256; but it is difficult to discover to what extent the decisions in those cases rested on peculiar statutory provisions.
The order sought to be reversed is affirmed, and the writ of certiorari is dismissed.