Estate of Clark

Julius H. Clark died in the county of Yolo, in the state of California, on the fourteenth day of March, 1904, and was a resident of that county at the time of his death. He had resided in the county for more than twenty years continuously prior to his death. On the thirteenth day of July, 1872, while visiting in Keene, New Hampshire, he executed his last will and testament. This will was executed in conformity with the laws of the state of New Hampshire, and also in conformity with the laws of the state of California. It was filed by the executrix named therein in the office of the county clerk of Yolo County, with a petition praying for the probate thereof. In addition to having been a resident of Yolo County at the time of his death, the deceased left estate in that county. Subsequent to the filing of the will and petition the superior court of Yolo County in probate made an order permitting the original will to be withdrawn and forwarded to Keene, New Hampshire. The will was then probated in New Hampshire, and thereafter appellant herein filed his petition in the superior court of the county of Yolo, asking for probate of the same will upon an exemplified copy from the probate…

I dissent. The deceased, Clark, it appears, executed his will in 1872, at Keene, Cheshire County, New Hampshire, and left it in the custody of Cain & Benton, attorneys at law, in said county of Cheshire. After his death that will was sent out here and filed for probate in the county of Yolo, but before any action was taken thereon, upon the application of Mary M. Metcalf, a sister of the deceased and devisee and legatee of the estate under said will and the sole executrix named therein, for permission to withdraw said will and have the same proved in New Hampshire, the probate court of Yolo County entered the following order granting said application:—

Thereafter, on May 18, 1904, the proponent Du Bois, to whom an interest in said estate had been conveyed by said Mary M. Metcalf, devisee and legatee of the said will, filed a petition in the superior court of Yolo County for admission to probate of said will upon a duly authenticated copy thereof and its probate in the state of New Hampshire. Upon notice of said application having been given pursuant to the statute, the contestant L. J. Clark, son of the testator, and a legatee under the will, filed objections to the admission of…

I dissent. So far as the policy of the provisions of section 1322 of the Code of Civil Procedure is concerned, that is a question for the legislature, and not for the courts. There are considerations both for and against the proposition that the will of a person who dies a resident of this state may be first probated in some other state. In cases of persons who have recently become residents of this state it is often very much more convenient and less expensive to pursue this course. A large part of the population of this state has always consisted of persons who have lived here but a short period of time. It may be that the legislature, having these circumstances in view, believed it the best policy to provide that this might be done, and enacted this statute for the express purpose of allowing it to be done. But, in any event, in view of the plain language of the section, the matter of policy is immaterial. “A cardinal rule of interpretation is that a statute free from ambiguity and uncertainty needs no interpretation. This must be so, for all interpretation and construction is for the purpose of ascertaining the legislative will. When this is clear, interpretation is not…

I dissent, and think that the order appealed from should be reversed. In my opinion the language of section 1322 of the Code of Civil Procedure, ‘1 all wills duly proven and allowed in any other of the United States, or in any foreign country or state may be allowed and recorded,” etc., is entirely too clear and explicit to leave any room for the play of construction. The fact that the section is preceded by the sub-heading “Probate of Foreign Wills” is not sufficient to overcome the unmistakable meaning of the language of the section. Indeed, the word “foreign” does not necessarily mean in law a country other than a sister state of the American Union. In the majority of instances it includes such sister states, and this view of its meaning is so well established as to have gone into the text-books and law dictionaries as settled law. In “Words and Phrases Judicially Defined” (vol. 3, p. 2881) it is said: “For all national purposes embraced by the federal constitution, the states and the citizens thereof are one, united under the same sovereign authority, and governed by the same laws. In all other respects the states are necessarily foreign and independent of each other; their…

In their petition for a rehearing counsel for appellant reiterate the argument that our construction of the code provisions relating to the proof of foreign wills (Code Civ. Proc., secs. 1322-1324) can only be sustained by reading into the statute a qualification of the words “all wills” which will limit its application to wills “of a certain kind,” contrary to the intention of the legislature and the general understanding of the courts of the state and the legal profession. I take leave to doubt this general understanding of the courts and the profession, and again call the attention of counsel to the fact that it is wholly unnecessary to read anything into the statute in order to limit its application to wills of a certain kind. The qualifyingwords are plainly written in the statute, and the fault is with counsel in ignoring their existence and their force. The statute does not say “all wills” and stop there. Its language is (sec. 1322) “all wills duly proved and allowed” in any other state or foreign country. Wills that have been duly proved and allowed are wills “of a certain kind,” and in order to determine whether a particular will is of that kind we have to give a…