Opinion
No. 3009.
August 7, 1926.
O.D. Cochran, Hugh O'Neill, and G.A. Adams, all of Nome, for appellant.
It is not without some doubt that the court, in view of the record on appeal, takes jurisdiction; but in view of the fact that the proof of the will offered in the probate court was wholly ex parte, and necessarily in common form, being without notice, and in view of the fact that under section 1595, Compiled Laws of Alaska 1913, the jurisdiction of the probate court is "subject to the supervision of the district judge, in all testamentary and probate matters," and in view of the fact that under section 1774 of said Compiled Laws it is provided that "upon the filing of such exceptions the district judge shall proceed, on due notice, to hear and determine the same at such time and in such manner as he shall prescribe by order, and for that purpose may receive and entertain affidavits and depositions or hear oral evidence," and that by section 1775, "upon such hearing the district court or judge thereof, shall determine the issues so raised according to the very right of the matter, and make such order in the premises as he may see fit, which order shall be entered in the docket to be kept by the clerk of the court for that purpose, properly indexed, and a copy of the same shall be forwarded to the commissioner before whom the exceptions were filed, who shall thereupon proceed in accordance with such order." * * *
The court deems that it has jurisdiction of said matter for the purposes aforesaid, and will make and file its order in the premises according to the "very right of the matter," as he sees it. If the court should not take jurisdiction, it would probably compel a further appeal on part of the appellants from such ruling. So, also, in case of an affirmance of the order of the probate court. By a reversal of the ruling of the probate court the case simply goes back to the probate court with instructions for further action. Such further action cannot prejudice any of the parties interested in said estate, and in fact is necessary in order to warrant or authorize a contest between parties respecting the will. Section 1614, Compiled Laws aforesaid, provides:
"* * * And if, after a will has been proven and letters testamentary or of administration with the will annexed have been issued thereon, such will should be set aside, declared void or inoperative, such letters shall be revoked and letters of administration issued."
It seems that, under the Oregon statutes and under the like statutes of the territory of Alaska, the proof of a will is made in "common form" and without notice, ex parte. Hubbard v. Hubbard, 7 Or. 42; Luper v. Werts et al., 19 Or. 122, 23 P. 850; Clark v. Ellis, 9 Or. 133; Malone v. Cornelius, 34 Or. 192, 55 P. 536; Richardson v. Green (C.C.A.) 61 F. 423; Farrell v. O'Brien, 199 U.S. 89, 25 S.Ct. 727, 50 L.Ed. 101.
In Farrell v. O'Brien, supra, Chief Justice White, writing the opinion and quoting from the opinion in Ellis v. Davis, 109 U.S. 485, 3 S.Ct. 327, 27 L.Ed. 1006, says:
"No instrument can be effective as a will until proved; no rights in relation to it, capable of being contested between parties, can arise until preliminary probate has been first made."
He also declares:
"The requirement of probate is but a regulation to make a will effective" and a matter "of pure probate."
In Richardson v. Green, supra, the Ninth Circuit Court of Appeals states in its opinion that:
"Under the decisions of the Supreme Court of Oregon, after a will has been probated, then any one interested in the estate can attack the will in what is called a `direct proceeding'" — citing Luper v. Werts, supra, and other cases.
In the Luper v. Werts Case, the county court, having original jurisdiction in probate matters, first admitted a will in "common form"; then, "on the coming in of contestant, after hearing proof of will in solemn form," annulled its previous order; on appeal, the circuit court reversed the latter order. Upon appeal to the Supreme Court, the order of the circuit court was reversed, and the order of the county court affirmed.
In Malone v. Cornelius, supra, it was said that:
"If, after a will had been proven in `common form,'" "any one interested * * * wants to contest the will, he must file his complaint or allegations of contest, and thereupon the burden of proving the will in solemn form is imposed on the proponent."
And again:
"Whenever an instrument purporting to be the last will and testament of a deceased person is presented for probate, it is the duty of the court to hear the witnesses as to its due execution, and, if they show ex parte the instrument offered to be the will of the deceased, it must be admitted to probate, and letters testamentary issued as a matter of course."
Whatever may have been the evidence before the probate court, the evidence produced on this appeal at a hearing de novo, and also ex parte, was such as in our judgment should admit the will to probate in "common form." Any interested parties will thereafter have an opportunity to contest the will, by filing complaint or allegations of contest.
An order reversing the order of the probate court will accordingly be made, with instructions in conformity with this opinion.