State ex rel. Donovan v. District Court of the Second Judicial District

65 P. 120, 25 Mont. 355, 1901 Mont. LEXIS 54

Opinion

MR. JUSTICE PIGOTT

delivered the opinion of the Court.

The object of this proceeding is to obtain a writ of mandate requiring the defendants, the district court of Silver Bow county and E. W. Harney, one of its judges, to restore to the files certain grounds of opposition to the probate of the will of one Charles Colbert,' deceased, and to hear and determine them.

The affidavit in support of the application for an alternative writ and the answer of the defendants show these facts: On February 14, 1901, Charles Colbert died in the county of Silver Bow, Montana, leaving an estate therein of the value of $50,-000 or thereabouts. On February 21, 1901, one Woolbeater filed in the district court of that county his petition for the probate of an alleged will of the decedent, dated February 11, 1901, in which Woolbeater and one Lippincott were named as legatees and devisees, and for issuance to Woolbeater of letters testamentary. The petition was set for hearing on March 9, but was thereafter postponed to April 9, 1901. In, the meantime, on April 3d, the attorney general of Montana (the county attorney of Silver Bow county being associated with him) for and on behalf of the state, filed written grounds of opposition to the probate of the purported will, alleging that Colbert died intestate, leaving nn heirs within the state or elsewhere to the knowledge of the petitioners; that Colbert was, by reason of physical and mental debility and unsoundness, incompetent to make a last will and testament; that the pretended will was not subscribed or published by Colbert, but that his name was forged thereto after his death by the beneficiaries named therein; and that the contest was instituted for the reason that, in the absence of any heirs, the estate will escheat to the state of Montana. These gnounds of opposition the proponent on April 9, 1901, moved to strike off because they had been filed without permission after the time prescribed by the court within which persons might appear to contest; because the time within which the estate might escheat had not expired, and because escheat cannot be determined in probate proceedings. Further reasons were recited in the motion, but were abandoned on the argument, and will not be noticed. The motion was granted, and the district court and its judge will, unless otherwise directed by this court, proceed to' hear, and hear, the petition for the probate óf the will, ignoring the objections, and denying the state any right to contest the will before its probate.

Upon the foregoing facts, the defendants ask that the alternative writ of mandate be quashed, insisting that the state has no right to contest the probate of the will.

Although the arguments have taken a wide range, there are really but two questions necessarily presented: (1) Were the grounds of opposition to the probate of the alleged will filed in due season, and (2) has the state such an interest as entitles it to contest the probate of the purported will? We shall do little more than announce our conclusions.

1. The contest was instituted by filing written grounds of opposition before the date to which the hearing of the petition for probate had been postponed. In the recent case of Raleigh v. District Court, 24 Montana, 306 (61 Pac. 991), a contest initiated after the time originally appointed for the hearing or the petition but before the hour to which the hearing had been postponed was held to have been in due season. Applying the rule of that case, the contest in the case at bar was begun in time, and there ivas no. reason or necessity for obtaining leave of court to file the grounds of opposition. Section 589 of the Code of Civil Procedure refers to' intervention, and has nothing to do with the commencement of proceedings to contest a will under Sections 2329 and 2340 of the same Code.

2. Counsel for the defendants insist that the contest which tlie state- endeavored to make was a proceeding in escheat,-or1 to have an escheat declared. If this were its character, the proceeding was premature, and the district court properly refused to entertain it, for, under Sections 1867, 1868 and 1869 of the Civil Code, Sections 4510 and 4521 of tlie Political Code, and Title VIII of Part III of the Code of Civil Procedure, a proceeding by the attorney general to reduce the property to his possession, or a proceeding by him in the nature of an inquest of office, to determine whether the state has title by escheat to lands, may not, in any event, be commenced within five years after the death of the decedent. (People v. Roach, 76 Cal. 294, 18 Pac. 407.) But tlie contest of a will does! not involve the question whether the property has escheated or will escheat, nor the question whether tlie property or its proceeds should be deposited in the state treasury for the benefit of nonresident alien heirs.' Neither question can be adjudicated upon the contest of a will or of its probate. The office of a contest is to attack the validity of a purported will; its object is to have such will rejected; consideration of the question of title, except in so far as it may be essential to ascertain whether the contestant is an interested person, within the meaning' of Sections 2329 and 2340 of the Code of Civil Procedure, would be without the legitimate scope of the proceeding.

Much — indeed the greater paid. — of the argument has been addressed to tlie question whether title to the property of a decedent which escheats, vests immediately upon his death, or not. until tlie heirs have failed to- claim succession within the time prescribed by statute. On the part of the state it is maintained that title vests at the moment of death, while- the defendants argue that that the state does not acquire any title during the five years following tlie intestate’s death. We deem it unnecessary to decide which of these positions is correct Assuming, for the purposes of the present case, that the contention of the defendants in respect of the time when title by escheat vests should be upheld, the question presented is,: Has the state such an interest in the probate of the will or in the property of the estate of Colbert, deceased, as entitles it to contest the will? Subdivision 8 of Section 1852 of the Civil Code provides, in substance, that, if an intestate leaves no heirs, his estate escheats to the state. Section 2329, supra, provides' that any person interested may appear and contest a -will. The grounds of opposition to the probate of the will offered by Woolbeater, if established, would result in its rejection, in which case, if there are heirs or another will, the property would descend to them, or pass by purchase to the devisees or legatees, provided they appear within the. periods prescribed by statute. To show the state’s interest, the attorney general alleged that Colbert, died intestate, leaving no heirs within the state or elsewhere, to his knowledge. Wo think the state exhibited prima fads sufficient interest to enable it to institute a contest of the will. If there is no valid will, and no heir asserts his right of succession within the statutory period, the estate escheats. True, heirs, may appear in due season; the state would then cease1 to have an interest in the property. The present interest of the state depends, therefore, upon the nonascertainment of heirs, but the interest, although contingent, is nevertheless a substantial one. The probability of an interest, or even an interest dependent upon a condition, is enough. It would hardly be contended that a contingent remainder-man or an executory devisee is not sufficiently interested in an estate to have the will proved, or to' object to¡ its admission to probate when asserting rights under a different will; nor do we think that if A. devised lands to B., with remainder over to C. in case B. should die before C., C. would be without an interest in the probate of the will or in the estate of A., although B, were yet alive. A supposed will by which* A. devised real property to B. absolutely is presented for probate. C. files grounds of opposition to) the probate^ alleging that the will is a forgery, or is invalid for want of competency in the testator, a,nd, to show his interest, avers that by a former will tbe testator devised all his property to D. upon the condition subsequent that D. should within twenty years appear and claim it, in default of which the property should ga to C., and that D. has not asserted his right, and the twenty years have not passed. We think that C. discloses an interest in the probate of the second will, although it is manifest that twenty years have not elapsed since the testator’s death, and D. has yet the privilege of making his claim. The state may protect and preserve its contingent interest by contesting a suppositious, will. There is some conflict in the decisions touching.the nature of the interest which the contestant must possess; but we are satisfied, upon principle., that, to entitle a person to oppose a t&stamentary paper, it is sufficient if he discloses the existence of a contingent interest. The following text-books and cases may be cited as lending support to. the doctrine: Williams on Executors, page 279; Redfield’s Law and Practice of Surrogates’ Courts (5th Ed.), page 88; 1 Robertson’s Ecclesiastical Reports, 270; In re Greeley’s Will, 15 Abb. Prac. (N. S.) 393; Note to Meyer v. Fogg, 68 Am. Dec. 447; Vestry of St. John’s Parish v. Bostwick, 8 App. D. C. 464; Watson v. Alderson, 146 Mo. 333, 69 Am. St. Rep. 615, 48 S. W. 478; In re Merchant’s Will, 1 Tucker (N. Y. Surrogate Repts.) 18, 19.

Unless Section 2360 of the Code of Civil Procedure may be so construed as to permit the state to contest the probate or validity of the will within one year after its probate, the possible or contingent interest which the state asserts, and the title which it might apquire by escheat, would be concluded by the probate of the will. Section 2366 of the Code of Civil Procedure provides that “if no¡ person, within one year1 after the juobate of a will, contest the same or the validity thereof, the probate of the will is conclusive; saving to infants and persons of unsound mind, a like period of one year after their respective disabilities are removed.” It is apparent, therefore, that if the state may not contest the will before its probate, or within one year thereafter, its rights are forever lost.

We have not been referred to, nor have we found, any re ported case in which the precise question here presented was decided. We find nothing in the law which requires a conclusion different from the one reached, which is certainly consonant with reason, analogy and justice.

The motion to quash the alternative writ is denied, and judgment is awarded granting a peremptory writ as prayed for.

Writ granted.