In re Estate of Harris

Contestants insist that this court has jurisdiction where a guardian ad litem appears for minors and cites sections 872 and 373 of the Code of Civil Procedure and certain cases in support of this claim; but the supreme court, iu the Matter of Carpenter, 75 Cal. 596 , seemed to hold the contrary, saying that they did not think the provisions referred to applied to probate proceedings. At that time, however, section 1718, Code of Civil Procedure, was in existence, and there was no necessity for a guardian ad litem, if the trial court in a will contest exercised its power to appoint an attorney to represent minor heirs. In the Carpenter case the supreme court cited the Estate of Scott, 15 Cal. 220 , and Ex parte Smith, 53 Cal. 204 , to the effect that probate proceedings are not “civil actions,” and the court repeated that they are not to' be considered such within the purview of sections 372 and 373; but in the circumstances of that case the court thought the mere name or description of the officer of the court appointed was not material, since the purpose of the statute was accomplished and the rights of the infant protected by the appointee.

Since that decision, section 1718,…