Opinion
Rehearing Granted May 17, 1944.
Original proceeding in mandamus by the Farmers & Merchants National Bank of Los Angeles, executor of the estate of Jacob Kahan, deceased, against the Superior Court of the State of California in and for the County of Los Angeles, and the Honorable William R. McKay, judge thereof, to compel respondents to proceed with the administration of decedent’s estate.
Writ granted. COUNSEL
Bodkin, Breslin & Luddy and George M. Breslin, all of Los Angeles, for petitioner.
Charles H. Carr, U.S. Atty., of Los Angeles, A. Matt. Werner, Gen. Counsel to Alien Property Custodian, and George A. McNulty, Chief, Alien Property Unit, both of Washington, D. C., and J. A. Fridinger, Atty., Alien Property Unit, of Arlington, Va., for Leo T. Crowley, Alien Property Custodian, as amicus curiae, in support of petition.
J. H. O’Connor, Co. Counsel, and S. V. O. Prichard, Asst. Co. Counsel, both of Los Angeles, for respondents.
OPINION
SHINN, Justice.
This is a proceeding in mandate brought by the executor of the estate of Jacob Kahan, deceased, against the Superior Court of Los Angeles County and a judge thereof sitting in probate, seeking a writ directing the court to proceed with the administration of said estate. The will of decedent was admitted to probate the 27th day of November, 1942, and the usual proceedings were had thereafter until the court was asked to confirm a sale of real estate. The court refused to proceed with the hearing or to take further steps in the administration, for the reason that the judge of the probate department where the proceeding is pending was and is of the opinion that the court acted without jurisdiction of the parties in ordering the will admitted to probate, and that the order and all subsequent proceedings are void. The contention is that the proceedings are void because at the time the petition was filed two of the heirs, who are also beneficiaries under the will, resided in Ukrania, Russia, in territory then occupied by the German army; it was unlawful under the Trading With the Enemy Act, 50 U.S.C.A.Appendix, § 3, to communicate with these heirs by wire or by mail, and that they were not notified of the proceedings as required by law. Sections 327 and 328, Probate Code, read as follows:
"§ 327. When the petition is filed, the clerk of the court shall set the same for hearing by the court upon some day, not less than ten nor more than thirty days thereafter, and shall give notice of the time and place of hearing by publishing the same in a newspaper published in the county; if there is none, then by three written or printed notices, posted at three of the most public places in the county. If the notice is published in a weekly newspaper, it must appear therein on at least three different days of publication; and if in a newspaper published oftener than once a week, it shall be so published that there shall be at least ten days from the first to the last day of publication, both first and last days being included. If the notice is by posting, it must be given at least ten days before the hearing.
"§ 328. At least ten days before the hearing, copies of the notice must be personally served upon the heirs of the testator and the devisees and legatees named in the will and all persons named as executors who are not petitioning, or mailed, postage prepaid, from a postoffice within this state, addressed to them at their respective places of residence, if known to the petitioner, if not, at the county seat of the county where the proceedings are pending."
Notice of the hearing on probate of the will was duly published. On November 9, 1942, copies of the printed notices were mailed to the heirs, devisees and legatees, at addresses stated in the petition, except that those of the Russian heirs were sent to them by registered mail in care of the Alien Property Custodian, Washington, D. C. On November 27, 1942, at the time of the hearing, proof was made by affidavit of publication and mailing, and there was filed on that day a letter from the Alien Property Custodian reading as follows: "Bodkin, Breslin & Luddy, 1225 Citizens National Bank Bldg., Los Angeles, Cal. Dear Sirs: Re: Estate of Jacob Kahn, dec’d. The Alien Property Custodian acknowledges receipt, by registered mail, of two published copies of Notice of Hearing of Petition for Probate of Will and Codicil of Jacob Kahan, deceased, the hearing being set for November 27, 1942. By General Order No. 5 the Custodian requires a report of any interest of a designated national in this estate. The report is to be made on Form APC-3, herewith enclosed, and the term ‘designated national’ is defined in General Order No. 5, set forth in full in the report form. As provided in General Order No. 6, the Custodian will, within sixty days, determine whether or not he will accept service of the notice. Very truly yours, (signed) Francis J. McNamara, Assistant to the Alien Property Custodian." (Under General Order No. 6 of the Alien Property Custodian, receipt by him by registered mail of process or notice will be deemed service only in case he files an appearance within 60 days.)
On the 6th day of October, 1943, the Alien Property Custodian filed his written appearance in the proceeding. It has been stipulated that this appearance may be deemed to have been filed at any date after the making and entry of the order admitting the will to probate. We should state here that we consider the mailing of notice to the Alien Property Custodian, his acknowledgment of the receipt of the notice, and his later appearance in the action as of no moment in our decision of the question of jurisdiction.
Respondent court gives as its first reason for refusing to act that the mailing of notice is a jurisdictional step in the proceeding to prove a will; that no notice of the hearing was given to the Russian heirs by mail because the Alien Property Custodian did not, prior to the hearing, accept service of the notice which he had received by mail. And respondent goes further and says that in no event can the court acquire jurisdiction to probate a will if an heir, devisee or legatee is so situated at the time notice is published, or posted and mailed that it is impossible for him to receive actual notice or knowledge of the pendency of the proceeding. We do not agree with either of these contentions. A consideration of the nature of proceedings to administer upon the estates of decedents, the provisions of the Probate Code relating to the probate of wills, and the cases bearing upon the matter of notice has persuaded us that jurisdiction of the court to admit a will to probate does not depend upon the mailing of notice, but upon publication or posting of notice, as required by the code. We shall discuss later the nature of proceedings to administer upon the estates of decedents and, while what is to be said bears upon the present point, we shall examine first the code provisions.
Section 301 of the Probate Code specifies the county or counties in which administration of estates may be had, depending upon the place of residence and the leaving of estate in the county in which administration is sought.
Section 326 reads as follows: "A petition for the probate of the will must state: (1) The jurisdictional facts; (2) Whether the person named as executor consents to act or renounces his right to letters testamentary; (3) The names, ages and residences of the heirs, devisees and legatees of the decedent, so far as known to the petitioner; (4) The character and estimated value of the property of the estate; (5) The name of the person for whom letters testamentary are prayed. No defect of form or in the statement of jurisdictional facts actually existing shall make void the probate of a will."
Concededly, Los Angeles County is the proper county in which to administer the instant estate. Publication of notice as required by section 327, supra, gave the court jurisdiction over the parties, unless mailing of notice, as required by section 328, was a jurisdictional step. We believe that it was not and that the decisions support our conclusion. Nicholson v. Leatham, 1915, 28 Cal.App. 597, 153 P. 965, 155 P. 98, was an action in equity to set aside an order admitting a will to probate upon the ground that the order was void for failure to take steps essential to the giving of notice to those entitled thereto under sections of the Code of Civil Procedure which are now found in the Probate Code. The court said (28 Cal.App. at pages 600, 601, 153 P. at page 967): "As to the first proposition, the contention of appellants is that the courts of this state do not acquire jurisdiction to make an order admitting a will to probate upon a petition in due form filed and hearing had thereon upon proof of publication of notice as required by section 1303 [of the] Code of Civil Procedure, from which petition is omitted the names and residences of the heirs of the testator, if such names and residences be known to the petitioner, and that, in the absence of a copy of the published notice being addressed to such known resident heirs, as provided in section 1303, supra, an order made upon such petition admitting a will to probate may be set aside and vacated in a court of equity regardless of lapse of time. In our opinion, the provisions of section 1300 [of the] Code of Civil Procedure (now section 326, Probate Code), as to what the petition for the probate of a will shall contain, other than subdivision 1 thereof requiring a statement of the jurisdictional facts, are, in so far as noncompliance therewith affects the jurisdiction of the court, directory." The reasons which the court gave for the quoted statement are omitted here in the interest of brevity. This holding was approved in Murray v. Superior Court, 1929, 207 Cal. 381, 278 P. 1033, in which it was said that the failure of the petitioner to state the names and addresses of legatees which were known to him would not deprive the court of jurisdiction to pass upon a petition for the probate of a will and objections thereto. And it was said that the power to proceed with the probate of a will attaches upon the production of the will and the filing of the petition pursuant to section 1300 of the Code of Civil Procedure and the publication of the notice provided for in section 1303 of that code. In Stiebel v. Roberts, 1941, 42 Cal.App.2d 434, 109 P.2d 22, where there had been a failure to mail notice to a co-executrix of a petition for a probate homestead, as required by section 1200 of the Probate Code, it was said that the failure to give notice by mail or to personally serve the co-executrix did not affect the jurisdiction of the probate court and that jurisdiction was acquired by the filing of the petition and the posting of notice as required by law. In Security-First Nat. Bk. v. Superior Court, 1934, 1 Cal.2d 749, 37 P.2d 69, it was held that the posting of notice of hearing of a petition to settle a trustee’s account and the mailing of notice to one stated in the petition to be the beneficiary of the trust was sufficient to give the court jurisdiction to settle the account, even though the petition failed to state the true names and addresses of the beneficiaries of the trust, as required by section 1120 of the Probate Code, and this notwithstanding the requirement of section 1200, Probate Code, that notice of the hearing must be mailed to all beneficiaries at their addresses, if known, and if not known, at the county seat of the county where the proceedings are pending, or be personally served upon such persons. It is true that the court held that the judgment roll did not disclose that there had been a failure to give notice as required by law and that the order was therefore not subject to collateral attack, but the decision was to the further effect that the failure of the beneficiary to receive notice because of the trustee’s failure to state his name and address in the petition, as required by section 1120, did not deprive the court of jurisdiction to settle the account.
In view of the broad claims of respondent, to be hereinafter discussed, it seems appropriate that we state somewhat fully our reasons for holding that the applicable code sections call for the mailing of notice only as a matter of convenience and good administration, and not as a step upon which the jurisdiction of the court to initiate administration proceedings depends. In the procedure of giving notice by mail, the first step is compliance with subdivision 3 of section 326. Unless the names and addresses are stated in the petition, no notices are to be mailed by the clerk. It is not required that the names and addresses be stated unless they are known to the petitioner. The petition may be and often is filed by a stranger. If he does not know the names and addresses of those entitled to notice, he is not required to make any effort to ascertain them. Upon the hearing of the petition the court may rely upon the statements of the petition giving the names and addresses of those entitled to notice or upon petitioner’s statement that they are unknown. No special duty is imposed upon the court to require proof as to such names and addresses, and it is discretionary with the court to direct such an inquiry or to proceed without it. The most efficacious step looking toward the receipt by the interested parties of notice by mail is the giving of the necessary information to the clerk. The entire procedure for mailing may be nullified by reason of the want of information, indifference or willful omission of the petitioner, upon whom the clerk must depend. It is true that the requirement of section 328 for mailing of notice by the clerk is expressed in mandatory terms, but so is the requirement of section 301 for the statement in the petition of the names and addresses of the interested parties, which has been held to be directory only. It is consistent with the entire scheme of notice to regard the provisions of section 328 also as directory. The legislature has recognized the obvious distinctions between proceedings for the administration of estates and adversary proceedings in which jurisdiction may be acquired by substituted service of summons. And it is because of that distinction, no doubt, that in probate matters there is no requirement that inquiry be made by a petitioner for the discovery of names and addresses that are unknown to him as there is where the court is asked to authorize publication of summons. If it had been intended to limit the power of the court to proceed upon constructive service in probate matters to cases in which no more certain methods of giving notice were available, we would expect to find in the Probate Code exacting requirements for the ascertainment of the names and addresses of persons interested in the estate and for personal service of notice upon them if they were in the county or in the state. And if the intention had been to recognize notice by mail as a right to which interested persons were entitled before the court could proceed, jurisdiction would not have been allowed to rest upon the ignorance of the petitioner, his unwillingness to inform himself, or his willful omission, and there would have been no unnecessary discrimination between those whose names and addresses were stated by the petitioner and those whose names or addresses, or both, were, for some reason, not stated. Since there is no requirement for inquiry to learn names and addresses which are unknown to the petitioner, and since it has been held that the omission from the petition of names and addresses that are known to the petitioner does not deprive the court of jurisdiction, it necessarily follows that the whole procedure for the mailing of notice was intended to be directory only. This holding does not imply that the failure to comply with the requirements of sections 326 and 328 would not justify the refusal of the court to proceed until the sections had been complied with, nor that such failure might not be prejudicial to the rights of those who were entitled to, but were not given, notice by mail. The failure to give notice by mail does not render void the order admitting the will to probate and therefore subject to collateral attack.
All of our titles to real property in private ownership have derived at one time or another from proceedings in probate, but are none the less secure because the jurisdiction in probate rests upon constructive service of notice. In re Estate of Davis, 1902, 136 Cal. 590, 69 P. 412; In re Estate of Davis, 1907, 151 Cal. 318, 86 P. 183, 90 P. 711, 121 Am.St.Rep. 105; Security-First Nat. Bk. v. Superior Court, supra, 1 Cal.2d 749, 37 P.2d 69. Respondent, while freely conceding this, makes the further contention that the court was powerless to obtain jurisdiction by means of constructive service of notice by publication, because the two Russian heirs were in territory then occupied by the armed forces of Germany and communication with persons in such territory was and is prohibited by the provisions of the Trading With the Enemy Act, supra. There is a divergence of authority as to whether the court can acquire jurisdiction by constructive service in adversary proceedings of persons residing in enemy territory. The conflicting holdings are stated in an annotation in 137 A.L.R. 1365, et seq., where the cases are collected, but we deem it unnecessary to review them or the reasoning which the several courts have employed in reaching their conclusions. No case has been cited, and we have found none, holding that in the matter of the probate of a will, or initiation of other proceedings for administration upon the estate of a decedent, constructive service of notice of the proceeding is ineffectual as notice to interested parties residing in the territory of a nation at war with the United States or in territory occupied by the armed forces of such enemy. No case has come to our attention in which a claimant to an interest in an estate has been permitted to challenge, by collateral attack, an order or decree rendered after constructive service of notice of the proceeding, upon the ground that it would have been impossible for him to receive personal notice because he had been, during the effective period of the notice, in some inaccessible part of the world beyond the reach of ordinary means of communication. What we have to say upon the matter of constructive service should be understood as applying exclusively to proceedings in probate, which are purely in rem, but which, because they are generally in the interests of, rather than adverse to, the parties to be reached by service, are to be distinguished from other actions or proceedings in rem, the usual purpose of which is to foreclose or bar, or to obtain a decree adverse to, rights or interests held or asserted by those to whose notice the process is directed.
In Re Estate of Davis, supra, 136 Cal. 590, 69 P. 412, one who claimed to be an heir of the decedent filed a contest of a will after the expiration of the allotted period of one year following its admission to probate. She alleged that she had no notice or knowledge of the order admitting the will to probate until more than a year thereafter; that she was living in a foreign country and that the time between the first publication and mailing of notice and the time of the hearing was insufficient to give her notice, and she made the claim that the statute providing for constructive service was therefore unreasonable, that it denied her due process of law, and was void. In rejecting this contention, it was held that service of notice by publication or posting constituted due process, and the court stated (136 Cal. at page 596, 69 P. at page 414): "As before suggested, the proceeding as to the probate of a will is essentially one in rem, and, in the very nature of things, the state is allowed a wide latitude in determining the character of the constructive notice to be given to the world in a proceeding where it has absolute possession of the res. * * * Public policy demands that a will shall have a speedy probate, and the legislature, recognizing that fact, has given the heir, by express enactment, one year after that probate has been decreed, within which time he may attack the will. His rights are in no way concluded by the decree of probate. He has an entire year thereafter in which to attack the will, and he may attack it upon the same grounds and for the same reasons that he could attack it prior to its probate. Even the measure of evidence demanded of him for a successful attack is no different in the two cases. It is thus apparent that, in such a case as the one presented here, due process of law was in no degree denied [Laura Tracy] (plaintiff) upon the hearing." This holding was followed on a later appeal in the same matter. In re Estate of Davis, supra, 151 Cal. 318, 86 P. 183, 90 P. 711, 121 Am.St.Rep. 105. Constructive service of notice in matters of probate has frequently been held to meet the requirements of due process of law. Security-First Nat. Bk. v. Superior Court, supra, 1 Cal.2d 749, 37 P.2d 69; Monk v. Morgan, 1920, 49 Cal.App. 154, 192 P. 1042; In re Estate of Aldrich, 1905, 147 Cal. 343, 81 P. 1011.
We are concerned here only with the question of the jurisdiction of the court to admit the will to probate. As held in Re Estate of Davis, supra, publication or posting of notice of the hearing to prove the will constituted due process of law, even though the time allowed was too short to permit a nonresident to receive actual notice prior to the hearing. In giving further consideration to the matter, as it is presented to us, we should give some thought to the problems which confronted the legislature in the enactment of the laws which allow constructive service of notice. Proceedings in probate are for the benefit of all those who are entitled to share ultimately in the estate, whether as heirs, devisees or legatees. The shares of those who take by succession are subject to administration and all of the incidents thereof; devisees and legatees take by virtue of the will and in either case their several titles are confirmed by decree of distribution. All of them have the right to have the administration commenced and carried on expeditiously and the court and those appointed as executors or administrators have a corresponding duty. It is a matter of general knowledge that in the vast field of probate administration estates are usually settled in a routine manner without actual contest or adversary proceedings of any nature. These are facts which were known to the legislators when our probate laws were enacted. The Probate Code is replete with provisions for constructive service of notice throughout the proceedings; in fact in that respect the requirements for notice may be said to be elaborate and in many instances purely formal and wholly unnecessary from the standpoint of the requirements of due process. Constructive service is not designed to be the equivalent of personal service but a substitute for it, and it is of course an indispensable expedient, especially in probate. Its effectiveness is not to be defeated because in rare cases it cannot result in actual notice to some of those to whom notice is addressed, any more than it could be defeated by the fact that in some cases or in many cases it does not succeed in bringing home actual notice. It is not, nor can it be, a perfect scheme for the giving of notice in all cases, but as stated in Re Estate of Davis, supra, wide latitude must be allowed the legislature in such matters. The provisions of our probate laws probably strike as fair a balance as is possible between the necessities for prompt and efficient administration, which is desirable in all cases, and the disadvantages which must occasionally be suffered by those who are sought to be reached by constructive service but who fail to receive actual notice of the pendency of the probate administration or of the steps being taken therein. The admission of a will to probate is only the first step in administration proceedings; it establishes prima facie the validity of the will, but no more than that, unless there has been a contest before probate. Proceedings to protect, enforce or bar the claims of creditors of the decedent and those who claim the residue of the estate, as by notice to creditors, proceedings to determine heirship, contests after probate, for distribution and for the obtaining of special orders before distribution are all provided for as incidents of the administration. Having acquired jurisdiction originally, the court has the power to proceed with the administration to its conclusion. The entire administration is under the strict supervision of the court, and it is generally true that no action can be taken which results to the disadvantage or prejudice of anyone interested in the estate except it be ordered or approved by the court.
In determining whether the Russian heirs are being deprived of some substantial right because of the claimed unreasonableness or oppressiveness of the law which would bring them within the jurisdiction of the court by constructive service of notice, it is important to note that chances are remote of there being adversary proceedings in the estates of decedents by which some claimed right might be lost through being undefended. That is to say, the situation of these heirs must be judged with relation to the situations of the great numbers of claimants who are brought before the court by constructive service. In determining whether the provisions for constructive service are reasonable and consistent with natural justice, it must be presumed that the legislature regarded the inestimable advantages of initiating probate proceedings by means of constructive service as sufficient to outweigh the occasional disadvantages or prejudices occurring in isolated cases. It is true that the admission of the will to probate started the time running within which the heirs could file a contest and that that time may have elapsed without their learning of the will or of their relative’s death. The time allowed for contest is liberal and the position of these heirs can be no worse than that of any heir, resident or nonresident, who fails to receive actual notice of the proceedings until the time for contest has expired. If it should be conceded that it was impossible for the Russian heirs to receive actual notice of the proceedings, and if for that reason it should be held that constructive service of notice could not be made upon them and that all proceedings heretofore had in the matter of the estate are void, the next logical step would be to allow all claimants to challenge like proceedings because they had not had actual notice, which might be attributable to any one of innumerable causes. The legislature has not seen fit to provide for such exceptional cases, no doubt because it was found to be impossible to do so without creating intolerable delay in probate administration, as well as serious uncertainty and instability in titles derived from probate proceedings. Constructive service of notice of a proceeding for the appointment of an administrator or the admission of a will to probate is binding upon all persons, equally upon those who do not receive actual notice as upon those who do. The facts of the present case present no exception either under statutory law or the decisions. The Russian heirs were legally before the court when the will was admitted to probate, and the order then made was valid.
We are not called upon in the instant case to determine what procedure should be followed in adversary proceedings which may arise in the course of the administration. So far as we are advised, the order admitting the will to probate has become final and no contest of the will has been instituted. It is to be presumed that the Alien Property Custodian has received or will receive by mail all notices which otherwise would have gone directly to the heirs in Russia, including notice of the settlement of the final account of the executor and its petition for distribution of the estate. No question is presented in this proceeding as to the nature of the distribution to be made of the shares of the Russian heirs. No reason has been shown why respondent court should not proceed to act upon the pending petition for confirmation of sale of real estate. That is purely an administrative matter in which the court necessarily takes proper steps for the protection of the interests of all parties concerned, namely, to see that the price received is proportionate to the value of the property sold. The duty of passing upon a petition for confirmation of sale is one enjoined on the court by law and, for the reasons we have stated, a writ should issue directing the court to so proceed.
The conclusions we have stated furnish an answer to the contentions of respondent and it is unnecessary to consider other grounds relied upon by petitioner for issuance of the writ.
The writ is granted.
DESMOND, P. J., and PARKER WOOD, J., concur.