San Francisco Protestant Orphan Asylum v. Superior Court of Santa Clara County

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,…

I concur in the judgment. The code provides no limitation whatever in regard to the proceedings for the contest of a will after probate, except that the contest must be inaugurated within one year. Like all other proceedings in court, it is subject always to the power and the duty of the court to dis *450 miss the contest if not prosecuted with due diligence. The contest here in question was commenced within the year and has been diligently prosecuted. A judgment was once entered which was vacated on motion for a new trial, and when the case was about to be called for retrial a motion to dismiss was made by the petitioner on the ground that the citation had not been served upon it. It turns out that the citation was served upon an employee of the petitioner who was apparently in charge of its asylum, but who, it is conceded, was not the person upon whom the citation should have been served.

The motion to dismiss was denied and a day was fixed for the hearing, which would give the contestant an opportunity to cite the petitioner, and a new citation was ordered.

It is contended that the order is void solely because the citation would be issued more than one year after the contest…