State v. District Court of Twelfth Judicial Dist. in and for Chouteau County
| Decision Date | 04 April 1906 |
| Citation | 85 P. 866,34 Mont. 96 |
| Parties | STATE ex rel. RUEF v. DISTRICT COURT OF TWELFTH JUDICIAL DIST. IN AND FOR CHOUTEAU COUNTY et al. |
| Court | Montana Supreme Court |
Application by the state, on relation of A. Ruef, as executor of G. F Deletraz, for a writ of prohibition restraining the district court of the Twelfth judicial district in and for Chouteau county from hearing proceedings on a contest of the will. An alternative writ was issued, and on the return the matter was submitted on a motion to quash the alternative writ and dismiss the proceedings. Motion to quash the alternative writ and dismiss the proceedings overruled, and a peremptory writ ordered in accordance with the prayer of the petition.
F. E Stranahan, for relator.
Geo. H Stanton and Jos. A. McDonough, for respondent.
Prior to his death, which occurred at San Francisco on March 7 1904, G. F. Deletraz made and published two wills, the first of which for convenience will be designated the "Mossholder will," and the last the "Ruef will." Such proceedings were had in the superior court of San Francisco that the Ruef will was duly admitted to probate, and letters testamentary issued to the person named as executor in that will. The decedent had real and personal property in Chouteau county, Mont., and in May, 1904, after the will had been admitted to probate in California, a copy of such will and the probate thereof, duly authenticated, were produced by the executor with a petition for letters, and filed in the district court of Chouteau county, where such proceedings were had that thereafter, on December 30, 1904, it appearing to that court from the record that said will had been proved, allowed, and admitted to probate in the state of California, and that it was executed according to the laws of California, a decree was duly given and made admitting such will to probate. Thereafter, on February 2, 1905, certain devisees, and the executor named in the Mossholder will, filed in the district court of Chouteau county what purported to be a contest in writing of the Ruef will, which writing sets forth as the ground of contest that, at the time of making the Ruef will, the testator, Deletraz, did not have mental capacity to make a will and was acting under fraud, misrepresentation, and undue influence of certain other persons, and prays that the order admitting the Ruef will to probate be annulled; that the letters issued thereon be revoked; that the Mossholder will be admitted to probate; and that letters testamentary issue to the executor named in that will. To this contest the relator, the executor named in the Ruef will, demurred on the ground that the district court of Chouteau county has not jurisdiction to hear such contest, and that the so-called contest in writing does not state facts sufficient to constitute any ground of contest. This demurrer was overruled, and, the district court being about to proceed to hear such alleged contest, an application was made to this court for a writ of prohibition restraining the district court of Chouteau county and the Honorable Jere B. Leslie, judge of said court for the purpose of hearing all the proceedings in connection with this matter, the resident judge being disqualified, from further proceeding with said alleged contest. An alternative writ was issued, and upon the return the matter was submitted upon a motion to quash the alternative writ and dismiss the proceedings.
The question which arises, and which was submitted for determination, is: May a foreign will, after it has been admitted to probate in this state, be contested in the courts of this state upon the ground that the testator at the time of making such will was not of sound and disposing mind, or was acting under duress, fraud, or undue influence?
A "foreign will," in the sense that the term is used throughout this opinion, is a will executed in another state by a testator residing there, admitted to probate in such sister state after the death of the testator, and subsequently offered for ancillary probate in this state, as was the case with the will now under consideration. While our Code does not in express terms provide for the contest of an application to the courts of this state for the probate of a foreign will, it does so impliedly; for section 2351 of the Code of Civil Procedure, which has to do with the subject, provides for a hearing of such application, and that notice of such hearing shall be given. If objections could not be made at such hearing, then there would be no reason for requiring a hearing or notice thereof, and the mere fact that a hearing is required to be had, and proper notice of such hearing given, implies that some kind of objections may be interposed. The only specifications of grounds of contest of a domestic will are to be found in section 2340 of the Code of Civil Procedure, and they are not designated as such, but as the issues which may be raised and which the court is required to try and determine. So, likewise, while no particular grounds of contesting an application for the probate of a foreign will are expressly designated, section 2352 of the Code of Civil Procedure does enumerate the findings which the trial court must make before admitting such will to probate, and these may be accepted as questions with respect to which issues may be raised, and therefore the grounds of such contest. But these questions arise upon the hearing of the application for probate and are to be tried by the record itself, and have not any reference to proceedings after the will has been admitted to probate here. As these proceedings are purely statutory, and the statute makes no specific provision for the contest of a foreign will after probate, we might dispose of this proceeding by saying that the provisions of section 2352 above are exclusive, except as to the question of jurisdiction of the court of the sister state over the subject-matter, and likewise the question of the jurisdiction of the Montana court, which might be raised independently of statute. But attention is directed to one portion of section 2352, above, which provides that, when such foreign will is admitted to probate in this state, it shall "have the same force and effect as a will first admitted to probate in this state," and the argument is made that, as the probate of a domestic will or the validity of such will is subject to contest within one year after such probate, and as the foreign will when admitted has the same force and effect as the domestic will, therefore the probate of the foreign will in the courts of this state and the validity of such will are likewise subject to contest within a like period.
When the proper record of the probate of the will in the court of a sister state having jurisdiction is presented in a district court of this state likewise having jurisdiction of the subject-matter, the question arises: What force and effect shall be given by the courts of this state to such record? Section 1, art. 4, of the Constitution of the United States, provides: Pursuant to this direction, section 905 of the United States Revised Statutes [U. S. Comp. St. 1901, p. 677] was enacted, which, after providing for the manner of authenticating such records, reads: "And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken." Section 3201 of our Code of Civil Procedure also provides: "The effect of a judicial record of a sister state is the same in this state as in the state where it was made, except that it can only be enforced here by an action or special proceeding, and except also, that the authority of a guardian or committee, or of an executor or administrator, does not extend beyond the jurisdiction of the government under which he was...
To continue reading
Request your trial