Introduction to the Probate Code

 

INTRODUCTION TO THE CALIFORNIA PROBATE CODE  By LOWELL TURRENTINE Professor of Law, Stanford University Law School [Reprinted with Permission (52 West's Annotated California Codes 1-40 (1956))] Analysis   I. The Gold Rush and Its Results for Our Law of Decedents' Estates' The Old Regime

The Territorial Period

The Constitution of 1849

II. The Legislation of 1850-51 The Act Defining the Rights of Husband and Wife

The First Acts Regarding Decedents' Estates

(a) The Act to Regulate Descents

(b) The Act Concerning Wills

(c) The Probate Act

The Guardianship Act of 1850

III. Incorporation of the Law of Estates into the Codes of 1872

                    The Background of the Codes

                    The Civil Code of 1872

                    The Code of Civil Procedure of 1872

IV. Probate Jurisdiction Lodged in the Superior Courts

                    The Probate Court under the First Constitution

                    Provisions of the Constitution of 1879

                    Status of the Probate Tribunal under the Constitution of 1879

V. The Probate Code

The Background of the Probate Code

The Organization of the Probate Code

Constitutionality

Features of the Code

VI.  Legislation Since the Adoption of the Probate Code

VII. Looking Forward

                          Succession

                          Wills

                    Administration

 

The Probate Code of California was passed on May 11, 1931, and became effective August 14, 1931. It represented not some novel body of legislation, but the product of an evolution which began with statutes enacted in 1850 by the first legislature. Its understanding therefore requires a long backward look, in the course of which we shall examine the initial legislation, the Codes of 1872, the Constitution of 1879, the Probate Code of 1931, and amendments since that date.

 

I. THE GOLD RUSH AND ITS RESULTS FOR OUR LAW OF DECEDENTS' ESTATES THE OLD REGIME   One of the important by-products of the Gold Rush was the sudden imposition of the modified or Americanized common law, including what we may call a modern common law of decedents' estates, upon the vast area of California which for three-quarters of a century had been in theory, and at least to a considerable extent in practice, under the law of Spain and, since 1822, under Spanish-Mexican law. In fact, according to Judge Burnett's valuable preface to the first volume of California reports, dated 1851, the scanty settlements in these pastoral colonies '"needed but few laws. The Government was of a patriarchal character, little regard being paid to the strict letter of the law, either of Spain or Mexico."

One element only of the property law of this old regime survived and has come down to us today, namely, the system of community property. A characteristic of that system was the right of the surviving spouse to one-half of the community property; the other half, unless disposed of by will of the deceased spouse, passing to the heirs of the deceased spouse.

 

THE TERRITORIAL PERIOD   It will be appropriate to speak briefly of the territorial period, 1. e., from the achievement of de facto independence in the half year following Commodore Sloat's raising of the American flag at Monterey on July 7, 1846, to the convening of the first legislature and the admission of California to statehood in 1850.

 During this four-year interval, Congress, at odds over the issue of slavery, never got so far as to enact a frame of government for the new territory-not even after its formal cession to the United States in 1848 by the Treaty of Guadalupe Hidalgo, Such central authority as existed was in the military governor for the time being, and in the earlier part of this period there were conflicting claims to supreme command. Any confusion on this point, however, ended in 1847 when Col. R. B. Mason arrived in California with authority to be military governor and to organize a civil government.

 Pursuant to this latter mandate Col. Mason caused to be prepared a very considerable and carefully drafted code entitled "Laws for the Better Government of California, the Preservation of Order, and Protection of the Rights of the Inhabitants During the Military Occupation of the Country by the Forces of the United States." These laws purported, inter alia, to establish a system of courts and defined their jurisdiction and procedure. Probate and administration were confided to a special judicial officer, a "prefect" to be appointed for each county. Some twelve sections were devoted to setting out in detail probate jurisdiction and procedure. What model was used for these sections is not known, but there are certain points of similarity to the Act of April 22, 1850, "to regulate the settlement of the estates of deceased persons" passed by the first state legislature, in particular the conferring of probate jurisdiction upon a special tribunal and the provision for jurisdiction as to probate and administration. We know that the 1850 legislation was modeled after Texas law. Although establishing a distinctly common-law framework of procedure, Mason's "Laws" did not contain substantive provisions regarding descent, wills, or administration but provided in Section 1, "The laws and usages which have hitherto prevailed in California, that have not been abolished, shall remain in force, so far as they are in conformity to, and ,do not conflict with these laws."

 It is not clear that Mason's laws were ever actually put into effect. About the time of their completion news arrived of the end of the Mexican War and Col. Mason apparently supposed that Congress would now pass an organic act for the territory.

 In April, 1849, Col. Mason was succeeded as governor by Brig. Gen. Bennett Riley. So far as known, Gen. Riley made no use of Mason's Laws. He did, however, cause a translation of the Mexican "Laws of March 20, and May 23, 1837" to be prepared "as a temporary guide and assistance to the inferior officers of government, till more complete treaties can be prepared by competent persons." The translation bore an authentication by the Governor headed "Executive Department of California, Monterey, July 2, 1849."

 Nothing in these Mexican laws touches probate or the law of decedents' estates. In an able and interesting Introduction we are told that: "The laws which were in force in this country previous to its conquest, and which do not conflict with the Constitution, Treaties and Laws of the United States, constitute the existing laws of California, and the government recognized in those laws is the only one which can be recognized in any legal court, and these laws and this government must continue, until changed by, or with the consent of Congress."

Sound as was Governor Riley’s theory as to the continuance of the indigenous law, the turn of great events irresistibly ordained otherwise. James Marshall discovered gold at Sutter's mill on January 24, 1848. News of this spread slowly at first but by the summer of 1848 the coast settlements were emptying in a great trek to the foothills of the Sierra. In 1849 began an avalanche of immigration from the East. In that year alone, the white population of the state jumped from 26,000, of whom 8,000 were American, to 107,069, of whom 76,069 were Americans.

 The immigrants knew nothing of the Spanish-Mexican law. Their property and business dealings were of course on the basis of the American common-law system of the states from which they had come-except, of course, for a considerable body of custom which grew up "at the diggings" and eventually was carried into the law of the State of California. In some of the older settlements during the territorial period the native alcaldes and prefects continued, but for the most part they were replaced by men appointed by the military governors. In the mining towns alcaldes were elected by the inhabitants. These newly appointed or elected judicial officers were Americans familiar only with the American common law. Naturally they applied this law, in the main, in their courts. To what extent, after its promulgation in July 1849, they were furnished -with Governor Riley's translation of the Mexican law we do not know.

 

THE CONSTITUTION OF 1849

 

The future of the law of decedents' estates in California hung, of course, upon the broader issue whether civil or common law was to prevail. The constitutional convention which met in Monterey in September 1849 at the call of Governor Riley seems not to have concerned itself with this fundamental issue except in the debate on what became Article XI, § 14. This section defined the separate property of the wife as that owned by her at the time of the marriage and that acquired afterward by gift, devise or descent and declared that "laws shall be passed more clearly defining the rights of the wife in relation to her separate property as well as to that held in common with her husband."

This section impliedly wrote the civil law system of community property into the new constitution and was opposed by some delegates who professed allegiance to the common law or who thought that no legislation as to marital property ought to be introduced into the constitution. As Dean McMurray says, the champions of the common law argued as if it were already the law of California and as if, therefore, Article XI, § 14, were an innovation. Wiser heads pointed out that the section merely stated the existing law as to property rights between husband and wife; that the identical section was part of the constitution of some of the "old States"; and that the broader issue as to the general adoption of the common law was not yet presented.

 The Constitution of 1849 established in each "organized county" a county court, to be held by an elected county judge who was to '"perform the duties of surrogate or probate judge." This probate jurisdiction was perhaps to be his primary function although the county judge and county courts were also given certain criminal jurisdiction. This was a specialized court of probate and was so recognized in the first act establishing probate procedure which provided: '"The County Court, when sitting for the transaction of Probate business, shall be known and called the 'Probate Court,' and the County Judge shall be ex-officio Probate Judge."

 

Under the constitution the state was divided into districts, which, as constituted by the legislature, embraced more than one county. In each district there was to be a district court to be held by a district Judge- and - to - hay<- general - criminal -and - civil - jurisdiction, including issues of fact joined in the probate courts." The first probate act, which will be more fully described below, supplemented the constitutional provisions by allowing appeal from orders and decisions of the probate court to the district court, with trial de novo in the latter. Further comment on the status of the probate court as it existed prior to the constitution of 1879 will be found under Part IV, below.

 

II. THE LEGISLATION OF 1850-51

 

At the first legislature assembled in San Jose on December 15, 1849, the conflict between the proponents of the common law and those of the civil law was again in evidence and the latter were aided by Governor Burnett, who recommended that the Civil Code and Code of Practice of Louisiana be adopted, except that the common law should control crimes, evidence and commercial law. However, the other view prevailed and on April 13, 1850, an act was passed that: "The Common Law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of the State of California, shall be the rule of decision in all the Courts of this State."

 

THE ACT DEFINING THE RIGHTS OF HUSBAND AND WIFE   Four days later the legislature passed "An Act defining the rights of Husband and Wife," which, in some twenty-three sections, established a community property system. In certain respects the provisions of that Act, so far as rights upon the death of a spouse are concerned, have continued to be the law to the present, namely, that upon the dissolution of the community by the death of either spouse onehalf of the "common," i. e., community, property goes to the survivor; and that dower and curtesy are abolished.

The Act differed from the present law in providing: (1) that the deceased spouse's half should pass to his descendants. Only in the absence of descendants was it to go to the survivor; (2) that the half which passed to the descendants or in their absence to the survivor should be subject to the debts of the deceased spouse (under the present law the entire community property at the death of the husband is subject to his debts; and if the wife dies first, the half which she may dispose of by will is also subject to the debts of the surviving husband, but not, it would seem, to her own debts except insofar as such one-half may consist of her earnings). Strangely, the first spouse to die was not given any explicit power to dispose by will of his one-half of the community property, either in the Act defining the rights of Husband and Wife or in the Act concerning Wills, which had been passed on April 10, 1850, seven days earlier. However, that right apparently was embraced within the general grant of power to dispose of all the estate, real and personal, conferred by Section I of the Act concerning Wills.

 

THE FIRST ACTS REGARDING DECEDENTS' ESTATES

 

The first legislature laid down the general scheme of our decedents' estates law, much as that law still exists, in the form of three acts passed at the first session, viz.: An Act concerning Wills, mentioned above, an Act to regulate Descents and Distributions (April 13, 1850), and an Act to regulate the Settlement of the Estates of Deceased Persons (April 22, 1850). This last act was repealed and supplanted by an act of the same name passed March 1, 1851, at the second session. References hereafter will be to this 1851 act. As already noted, this first estates legislation was patterned after Texas law.

It will now be in order to notice the significant aspects of this first statutory system.

 

(a) The Act To Regulate Descents

 

We begin with the provisions as to succession to a decedent's separate property. As is still true, the surviving spouse is given one half if there is but one child or the issue of one child; if there is more than one child, or one child and the issue of other children, the surviving spouse takes one third. If all the descendants are of the same degree, they share equally, otherwise by representation.

From this point on, the 1850 statute differed from the present law. If there were no issue the surviving spouse divided the estate with the decedent's father (but not with the mother); and if there were no surviving spouse, then all went to the father (not in equal shares to the father and mother as today). If no spouse, issue, or father of the decedent survived, then to the brothers and sisters and to the mother; and if there were no brothers and sisters, then to the mother to the exclusion of issue of brothers and sisters (today a mother would exclude brothers and sisters as well as their issue). If a spouse survived but no parent or brother or sister, the surviving spouse took all the separate property to the exclusion of issue of brothers and sisters (instead of sharing equally with such issue as today).

Descent to next of kin, to be reckoned, as today, under the rules of the civil law, began if the decedent left no issue, spouse, parent, brothers or sisters (today descent to next of kin begins only if there are also no descendants of deceased brothers and sisters).

A special rule under which the property of an unmarried minor child which came from a deceased parent is to pass to the other Children of such parent and their descendants, still holds today.

Escheat to the state in the absence of a spouse or kindred was provided and such property until 1951 was to be for the support of schools.

There were provisions as to inheritance by half-bloods, and as to advancements, substantially like the present law.

This 1850 Act initiated the requirement, not existing apart from statute, that the intent that a gift be an advancement must be shown in a writing by the decedent or in a receipt from the donee. There was a provision for inheritance by and from an illegitimate, very liberal for that time, and in the main like the present law. The peculiar provisions of Sections 228 and 229 of the Probate Code, enacted first in 1880, which pass property under certain circumstances to children and other close relatives of a predeceased spouse, have no root in the 1850 statute.

 

(b) The ACT CONCERNING WILLS   The 1850 Act concerning Wills resembles the present law at least as closely as does the 1850 Act to regulate Descents and Distributions, discussed above. 'Me Wills Act initiated the present provision for testamentary capacity at eighteen, except that a married woman's will or revocation was no good without the written consent of the husband attested and subscribed in the form required for wills, unless the married woman was authorized for the purpose by premarital contract. This restriction on the testamentary power of married women was removed in 1866.

 Under the then prevailing conditions it was natural that provisions for oral or nuncupative wills should have been made and we find three sections of the 1850 Act devoted to this subject. As at present, such a will must have been reduced to writing within thirty days after the words were spoken, and probate must be within six months after the speaking of the words. The 1850 law limited the size of the estate disposable by such a will to $500 ($1,000 at present). But as to soldiers and mariners on active duty the 1850 Act apparently allowed nuncupative wills of personal property to be good with no limitation at all, whereas the present law places such wills under the same restrictions as to amount and procedure as other nuncupative wills and requires "actual contemplation, fear or peril of death. 11 As to civilians, the 1850 Act limited oral wills to "time of last sickness" ; the present law limits them to "expectation of immediate death from an injury received the same day."

 Only one type of written will was allowed under the 1850 Act, namely, the formal or witnessed will. The ceremony required, although more briefly stated, does not differ considerably from the more detailed provisions borrowed from the Field draft of a civil code for New York which went into our Civil Code of 1872 and are now represented by Probate Code § 50.

 Other significant features of the 1850 Act are as follows:

(1) A statute of the sort enacted in England a century earlier removing the disqualification of an interested witness by cancelling the gift to him-found without substantial change in the present law .

 (2) A provision for revocation by acts done to the document, to which the 1872 Civil Code added importantly, viz., an authorization for partial revocation and a restriction that if the act was done by someone else than the testator, the direction of the testator, and the fact of the injury to the will had to be proved by two witnesses.

 (3) A provision against revival of an earlier will by the destruction or other revocation of a later will. This was carried forward into the Civil Code of 1872 and the Probate Code, without any attempt to clear up the serious ambiguity of the clause "unless it appear by the terms of such revocation that it was the intention to revive and give effect to the first will."

 In the case of revocation of the later will by act would '"terms" in the foregoing "unless" clause include words spoken by the testator showing intent to revive an earlier will?

 (4) A provision for revocation by operation of law which differed importantly from the present law. Under the old wording, if a man married after making a will, and was survived by his wife, the will was revoked in toto unless the wife was provided for as the statute then, and now, states. A will made by an unmarried woman was to be revoked if she married, regardless of whether her husband survived. No provision for revocation was inserted as to a will made by a married woman since such a will would have been invalid anyway without the husband's consent.

 The 1850 provision for revocation by operation of law was carried without change into the 1872 Civil Code, but the latter was amended in 1905 and 1909 and again in 1931, with the enactment of the Probate Code, so that now we have a uniform provision that if after making a will the maker marries and is survived by his spouse, the will is revoked as to such spouse unless provision has been made in the will or elsewhere for such spouse, or "unless [the surviving spouse] is * * * in such way mentioned therein so as to show an intention not to make such provision." The quoted clause has occasioned much, litigation.

 (5) A provision that a gift by will is not revoked by the fact that the testator has contracted to sell or has encumbered the subject matter of the gift. This was carried forward into the Civil Code of 1872 and the Probate Code. In this connection it should be noted that a new method of revocation (though seldom noticed in the cases) was, introduced by § 1304 of the Civil Code of 1872 and appears today as. Probate Code § 73, namely, by the testator's stating in a subsequent instrument such as a deed or bill of sale or pledge an intent to revoke a previous testamentary disposition of the property involved, or where the terms of the subsequent agreement are wholly inconsistent with the terms of the testamentary disposition.

 (6) A provision for pretermitted children and pretermitted issue of any deceased children, together with a description of how the share of such pretermittees should be made up, was carried forward into the Civil Code and the Probate Code without much change, except to exclude from the benefits of the section a child or other issue for whom provision had been made by a settlement. The 1850 Act gave a child born after the making of the parent's will an intestate share, unless the child was provided for or it appeared that there was no intent to provide. This section also was carried forward without much change, except that in the Probate Code it is restricted to cases where the testator marries after the making of his will and has issue of that marriage. It is strange that neither in 1850, 1872 or 1931 was attention paid to the question whether the last-mentioned provision, namely, for children born after the making of a will, was not superfluous in view of the pretermission statute.

 (7) An anti-lapse Provision in favor of relatives, which, until amended in 1905, applied only to devises. The section was broadened again in 1921 to include the case of a relative dead at the time the will was made, and was clarified by specifying that descendants, entitled to take in place of the predeceased relative, are only such as survive the testator. When embodied in the Probate Code the section was expanded so as to state first the general rule as to lapse, and then to make an exception for the descendants of relatives, in accordance with previous wording.

 (8) A provision that a devise of land conveys all the estate of the testator therein unless a contrary intent appears-carried forward substantially unchanged to Probate Code § 120. The Civil Code of 1872 added a seemingly superfluous provision (now Probate Code § 107) that the term '"heirs" is not requisite to devise a fee, and a devise of real property passes all the estate of the testator, unless otherwise limited.

 (9) A provision that land acquired after the making of a will shall pass under the will if this appears to have been the testator's intent carried forward with slight change to the present § 121 of the Probate Code. The Civil Code of 1872 added two provisions broadening the foregoing: one, that a devise or bequest of all the testator's real or personal property carries all he can dispose of at his death, including property embraced in a power to devise; the other, that a devise or bequest of residue passes all that the testator could devise or bequeath at his death.

 (10) Finally, a surprisingly illiberal rule that no will made outside of California should be valid unless executed according to the provisions of the Act. As to personalty in California bequeathed by a nonresident testator, the statute displaced the conflict-of-laws principle that a bequest, if validly executed under the law of the domicil, should California.

 The Civil Code of 1872 swung to the opposite pole, declaring a will valid if executed according to. California law

 law of the place where it was made, or according to the law of the place where the testator was then domiciled. This 1872 provision was broader than the conflict-of-laws rule in permitting wills to be valid if made in accordance with the law of the place of execution rather than simply that of the domicil at death, and in extending validity to wills of land even though not executed in accordance with the law of the situs.

 However, this liberal provision was short-lived. The Code amendments of 1873 reinstated the narrow rule of 1850. In 1905 the section was again liberalized so as to give validity to foreign wills with regard to personal property in California if executed in accordance with the law of the testator's domicil at death, provided the will was in fact made at such domicil. This last proviso was wisely omitted when the 1905 version was embodied in Probate Code § 26.

 The more important additions to the Wills Act of 1850, other than already mentioned, will be taken up at a later point. First, a word as to the Act "to regulate the Settlement of the Estates of Deceased Persons" (often referred to as the Probate Act) in the form in which it was reenacted on May 1, 1851.

 

(c) THE PROBATE ACT   The length and detail of the Probate Act, 313 sections, covering 41 printed pages, suggests that it was not an original invention but was in large part borrowed, and as already stated, we know this to be true. The Act, in spite of numerous amendments and two codifications in the century since its adoption, is in its general scheme and even in many of its details still the California law. Space will permit only brief mention of certain of its features, with particular reference to aspects in which it has been changed.

 Specification of what petitions for probate and for letters of administration must contain is not found in the Probate Act, but derives from an amendment of 1861, amplified by amendment to the Code of Civil Procedure in 1907. The Probate Act, however, initiated the present distinction requiring notice by publication in the case of a petition for probate, but only requiring posting of notice in the case of petitions for letters of administration.

 Likewise the Act initiated (a) our lenient provision under which a will contest may be either before probate or-as the statute read until 1929,-within a year after probate; (b) the lamentable restriction now found in Probate Code § 350, under which a lost will cannot be proven unless shown to have been in existence at the testator's death or to have been destroyed fraudulently or by public calamity in the lifetime of the testator, without his knowledge, and unless proof of the contents is by two witnesses; and (c) summary probate of a will already proven in another state or country, by production of authenticated copies of the will and the order of admission.

 Qualifications of personal representatives have undergone several striking changes. Down to 1891 married women were disqualified for appointment as administratrices, and if a single woman was appointed, her subsequent marriage extinguished her authority. Down to 1913 males were to have preference over females in the priority ranking of persons entitled to administer. The Probate Act and the Code of Civil Procedure of 1872 did not disqualify non-residents for appointment either as executors or administrators, but § 1354 of the Code of Civil Procedure of 1872 introduced in effect a requirement that a non-resident executor in order to qualify must come into the state, and this still exists. In 1877-78 a requirement that an administrator be a bona fide resident of California was added and still remains.

 The Probate Act gave a person entitled to letters a right to request the appointment of a person not entitled and there is no reason to suppose that a non-resident could not have made such a request. But as the section was carried into the Code of Civil Procedure of 1872 and as it still exists, it unfortunately has led to the construction that if the relative otherwise entitled to letters is a non-resident he cannot nominate a substitute, except in the case of a non-resident surviving spouse. Our system of Public Administrators to care for estates where no one higher in the order of priority applies for letters dates from the Probate Act.

 The original provision for bond of the personal representative was, of course, at a time before corporate sureties, and contemplated two bondsmen and a penalty of twice ""the value of the estate", which value a probate judge was to ascertain by examination of the applicant and of any other persons he might think proper. In 1863 the penalty amount was cut to twice the value of the personal property and twice the annual income from realty. In 1921 the present penalty, where bond is furnished by a surety company, was provided, namely the value of the. personalty and the annual income from all the property.

 The Probate Act provided for the appointment in each estate of three disinterested persons to act as appraisers. No inheritance tax was enacted until 1893, and it was not until 1911 that inheritance tax appraisers appointed by the State Controller were authorized.

 It is interesting that the germ of the present drastic provision under which an entire estate of not over $2500 may be set apart for a surviving spouse or minor children regardless of debts except those specified, and regardless of a will, was contained in the Probate Act, the maximum valuation allowable under that Act being $500. A prototype of the present provision for collection of assets by affidavit in small estates came into our law in 1874.

 The Probate Act provided for a family allowance and setting aside of exempt property for a widow or minor child; but no provision for a "probate homestead"-which is so important and unusual a feature of our present law -was made until the Code of Civil Procedure of 1872.

 The provision for the presentation, allowance and payment or compromise of claims against the estate, contained in the Probate Act, remains generally unchanged in our present law. Time for presentation was shortened in 1929 from the original period of 10 months to 6 months after first publication and unmatured or contingent claims, which originally were allowed 10 months after becoming due or absolute, now must be presented within the same period as other claims.

 The most fundamental alterations in the administration of decedents' estates since the Probate Act have to do with the sale of assets. The Probate Act placed realty in a preferred position-as has been true in the modern law generally-resort being required to personal assets of the estate for payment of family allowance, debts, taxes and expenses of administration. Only in the case of insufficiency of such assets could realty be attacked. This was also the provision of the Code of Civil Procedure of 1872, but the amendments of 1873-4 placed realty on the same plane as personalty so far as sale to pay debts, etc., is concerned, and such is the law today.

 Other points of interest regarding the Probate Act will now be noted.

(1) Provisions in that Act for authority to complete a contract of a decedent for the sale of real property are substantially continued today and cover also contracts for the sale of personalty.

(2) As to accounting and distribution, the Probate Act initiated the rule that if a will makes a provision for the compensation of an executor, this shall be deemed in full unless he files a renunciation of all claim to the compensation provided by the will. The Act set the pattern, since adhered to, of a statutory fee schedule for the personal representative, decreasing in percentage with the amount of the estate. The first schedule allowed 7% on the first $1,000, 5% on the second $1,000, and 4% on the remainder of the estate, with discretionary allowance for extraordinary services. This is more generous, even in small estates, than the liberalized provisions of the 1955 amendments to the Probate Code; and on large estates the difference is very great. Fees of public administrators were set at 4% of the estate administered by them, regardless of size.

 No express provision for attorneys' fees was made in the Probate Act, nor, indeed, did it come into our law until an amendment to the Civil Code of Procedure in 1905, now Probate Code § 910. Prior to 1905, such fees were allowed as part of the personal representative's necessary expenses under Probate Act § 219 and Code of Civil Procedure § 1616.

 (3) An order of priority for payment of debts was established which did not differ much from the present except: (a) that it failed to make clear whether administration expenses were at the top or ranked after the expenses of the funeral and the last illness, and the family allowance; and (b) that there was no preferred position for wage claims.

 (4) A provision for payment into court of the amount of unmatured or contingent claims was introduced and continues to the present, but has been supplemented so that the amount of any contingent claim may be ordered paid to a trustee for investment as authorized by the court or in securities legal for savings banks.

 (5) Partition of property before distribution at the instance of any distributee entitled to an undivided interest therein was provided for in the Probate Act as in the present law. But under the Probate Act the appointment of three "commissioners" to make partition was mandatory, whereas today the court makes the partition unless a party requests appointment of a referee or three referees. If real estate could not be divided without prejudice to the owners, Section 266 of the Probate Act allowed the court to set the entire piece off to one owner (giving preference to males over females and to older over younger children) if such owner would pay to the other interested parties their share of the value of the property as determined by the commissioners. This section was dropped when the Probate Code was enacted in 1931.

 

THE GUARDIANSHIP ACT OF 1850   In addition to the three statutes dealing with decedents' estates, above-mentioned, the first legislature enacted on April 29, 1850, a comprehensive "'Act to provide for the appointment and prescribe the duties of Guardians." Jurisdiction for the appointment and supervision of guardians, both of minors and incompetents, was conferred on the probate judge of each county. This jurisdiction passed to the superior courts after the adoption of the Constitution of 1879 and an act of 1880.

 The provisions of the Guardianship Act of 1850 were carried in part into the Civil Code of 1872, together with borrowings from the Field Civil Code, and in part into the Code of Civil Procedure of 1872, with modifications and additions. These code sections, with numerous changes, were amalgamated and became Division IV of the Probate Code of 1931. To this was added the Uniform Veterans' Guardianship Act which had been passed in 1929.

 

III. INCORPORATION OF THE LAW OF DECEDENTS' ESTATES INTO THE CODES OF 1872 THE BACKGROUND OF THE CODES   Governor Leland Stanford in his message to the legislature in 1863 urged the appointment of a commission of three men, learned in the law, to prepare a thorough codification of the laws of California. He repeated this suggestion in 1865, and in 1867, Governor H. H. Haight urged a commission for "revision" of the law. On March 28, 1868, an "Act to provide for the revision and compilation of the laws of the State of California and publication thereof" was passed, naming as the first commission three individuals. The latter brought in a progress report in 1870. The legislature of that year failed to continue this commission but authorized the appointment by the governor of a new commission with authority to use or discard what had already been done.

This commission under the able chairmanship of Creed Haymond prepared four codes, Civil, Code of Civil Procedure, Penal and Political. In 1871 Governor Haight, commenting favorably upon the work of the commission, said:

 "The Penal Code and the Code of Civil Procedure embody in the main the various provisions of law already in force upon these subjects, systematically arranged, with such amendments as are obviously desirable.

""Most of the changes made in the Civil Code are drawn from the Civil Code of New York, a work which bears the impress of thought and labor, and if adopted, will be an important advance in legislation. The provisions taken from the New York Code have been subjected to careful scrutiny."

 The Civil Code and the Civil Code of Procedure were both adopted in March 1872 and took eff ect January 1, 1873.

 The Haymond Commission was continued until 1874 and was assisted by a distinguished '"Commission to Examine the Codes" appointed by Governor Booth, namely, Stephen J. Field, who had been appointed Associate Justice of the United States Supreme Court by President Lincoln in 1863; Jackson Temple, an ex-Justice of the California Supreme Court; and John W. Dwinelle, of the San Francisco bar. The labors of these two bodies produced a rather consi derable group of code amendments which were adopted by the legislature in the session of 1873-74.

 The background of the codification movement, in particular the history of the codes prepared by David Dudley Field in New York, has been well sketched by Professor Van Alstyn in his introduction to West's Annotated Civil Code and will not be repeated here. It is sufficient to say that although in many areas of the law the commission made large use of the David Dudley Field draft of a Civil Code (which failed of adoption in New York) that part of the California Civil Code with which we are concerned, namely the law of wills, succession, homesteads and community property, was chiefly a compilation and revision of previous California statutes. Likewise the law relating to probate and administration, which was placed in the Code of Civil Procedure, derived in the main from the Probate Act of 1851 and amendments thereto.

 

THE CIVIL CODE OF 1872   It will now be in order to note the more important additions to our law of wills which were borrowed from the Field code, above mentioned, and embodied in the Civil Code of 1872, as amended in 1873- 4 -bearing in mind that certain features of the 1872 codes have already been mentioned in discussing the Acts of 1850.

 (1) A provision for the invalidity of a will made under fraud or undue influence.

 (2) An authorization for conjoint or mutual wills, for conditional wills, and for republication by codicil.

 (3) A disqualification of corporations for taking by will except those formed for scientific, literature or educational purposes-expanded by later amendments so that now the statute also qualifies public, charitable, and governmental corporations.

 (4) Our "mortmain" provisions now embodied in Probate Code § 41-43.

 These originated in a code amendment of 1874 which invalidated charitable gifts unless the will was made 30 days before death and limited such gifts in any event to one-third of the estate if the testator left legal heirs. Subsequent amendments have made these intended safeguards against the disinheritance of near relatives so easy of evasion that the whole Act is merely a trap for the uninformed.

(5) Authorization for holographic wills (referred to as "olographic" until the Probate Code of 1931).

(6) Provision for revocation of a will in duplicate by an act of revocation done to one of the copies; and a provision that revocation of a will revokes its codicils.

(7) A series of sections on the construction of wills, of dubious benefit to our laW.

(8) A five-fold classification of legacies ; provisions as to when the right to income on a fund accrues; when a legacy begins to bear interest; order of resort to decedent's assets to pay legacies;.and order of abatement of legacies.

(9) A requirement that a non-resident alien must appear and demand property within five years in order to take by succession, otherwise the property to escheat.

(10) Requirement of a writing to prove an intent to adeem. a generallegacy or for an advancement (as to the latter, the source is the Wills Act of 1850, as already noted).

(11) Requirement that the taker of a specific legacy for life deliver a receipt to the remainderman.

 

THE CODE OF CIVIL PROCEDURE OF 1872   What had formerly been the Probate Act of 1851 and subsequent amendments became Title XI, consisting of 12 chapters, of the Code of Civil Procedure of 1872. Our procedural law of decedents' estates continued in this way to be separated from the law of succession and of wills, and lodged in a different code, until the adoption of the Probate Code of 1931. In framing Title XI there was closer adherence to the existing law and less borrowing from the Field Codes than was the case with regard to the law of wills.

 The following, however, may be noted as some of the more important importations from the Field Code (using C.C.P. to refer to the Code of Civil Procedure of 1872).

(1) As to the passage of title to decedent's property at death, the Probate Act of 1851 was silent except that it gave the personal representative power to sell personalty and (thereafter) realty to pay debts. Under the Code of Civil Procedure title to property specifilcally devised or bequeathed passed at once to the beneficiary and title to intestate property went to the personal representative. Fearing questions as to where such title might be, prior to the appointment of a personal representative, the revisers changed the law in 1873-4 to read that title to intestate property, real and personal, passes at once to the heirs, subject to administration. Ibis, of course, altered the common law as far as intestate personalty was concerned. A still more drastic alteration occurred when the section became part of Probate Code § 300, whereby title to all of a decedent's property, real and personal, passes at once to the ultimate taker, whether by will or succession.

(2) The Probate Act of 1851 as to will contests was amended in 1867-68 so as to provide for the summoning of a jury and the trial of fact issues in the probate court. This became the substance of C.C.P., § 1312. In 1909 the procedure on contests was reworded and the significant provision added that at the trial the contestant is the plaintiff and the petitioner the defendant. This has led our courts to conclude that the burden of proof on all grounds of contest should be on the contestant. An amendment in 1929 shortened the time for contest after probate from one year to six months, and disqualified from such contest anyone who was a party to a pre-probate contest or who had notice of such contest in time to have joined in it.

(3) Under the Probate Act the executor or administrator had a right to retain possession of realty until the estate Was settled. The C.C.P. of 1872, § 1453, however, required him to deliver possession of realty to the heir or devisee when the time for filing claims had expired unless further retention was necessary after payment of debts.

(4) The C.C.P. of 1872, embodying the terms of an Act of 1865-66, forbade distribution until all state and local taxes on personal property were paid. In 1905, after passage of a comprehensive inheritance tax, the section was amended to require payment not only of the latter tax but of all state and local taxes on the "property." As amended in 1921 and carried into the Probate Code the wording is less broad, including merely inheritance taxes and taxes on personal property.

(5) The C.C.P. of 1872 (altering the usual American law) provided that a gift before death is not to be taken as an ademption of a general legacy unless such intention is expressed by the testator in writings.

(6) The duties of the public administrator were largely recast and amplified.

 

IV. PROBATE JURISDICTION LODGED IN THE SUPERIOR COURTS

 

The Constitution of 1879 did away with the old district and county courts and established in each county a superior court with general civil jurisdiction, including probate, and general criminal jurisdiction. By statute in 1880 all the jurisdiction formerly in the county or probate court or in the judge thereof, or in the district court or its judges, was lodged in the superior courts. This transferred jurisdiction over decedents' estates and guardianship to the newly created superior courts. To understand the significance of this change something must be said as to the old and the new probate tribunal.

 

THE PROBATE COURT UNDER THE FIRST CONSTITUTION   As stated in Part I, the first Constitution provided for an elective county judge in each county, who was to hold the county court and to "perform the duties of Surrogate or Probate Judge." On March 11, 1951, the second session of the first legislature passed a comprehensive act to organize the courts of justice and judicial officers (superseding separate acts passed at the first session). This act set up in each county the Probate Court and stated that the County Judge of each county was to be Judge of the Probate Court. That court was given exclusive jurisdiction in the first instance to take proof of wills, to grant letters testamentary and of administration, and to direct the administration and distribution of decedents' estates. It could issue all writs and make all orders "necessary and proper to the complete exercise of its powers."

 This Probate Court was held to be of "'inferior and limited jurisdiction," and upon it could be conferred "only special and limited power * 0 * none of the jurisdiction conferred upon other courts unless by express authority found in the Constitution." Issues of fact respecting the competency of a testator were to be certified to the District Court for trial at the request of either party, and as already pointed out in Part I, all issues of fact joined in the Probate Court might be tried in the district court. From the more important orders of the Probate Court appeal lay to the district courts with trial de novo in the latter.

 As a result of the inferior and limited competence of the Probate Court, its orders and judgments were not accorded the presumptions as to jurisdiction and regularity, obtaining in respect to the proceedings of courts of general jurisdiction. Strict compliance with the law had to be shown by anyone relying upon orders of the Probate Court. This rule being found "intolerable," an act in 1858 required the proceedings of probate courts to be construed "in the same manner and with like intendments as the proceedings of courts of general jurisdiction." A constitutional amendment of 1862, altering the judiciary article, Art. VI, in numerous respects, enumerated Probate Courts as well as County Courts, as among those in which the judicial power of the state was vested, and declared both of them to be courts of record. This amendment also abolished appeals to the District Courts in probate cases and routed such appeals to the Supreme Court without provision for de novo hearing.

 From the foregoing it appears that down to our second constitution California was classifiable among the group of about two-thirds of the states which, as Professors Simes and Basye point out, relegated probate courts to an inferior position in the judicial organization. Typically, in this group, a probate judge is not required to be a person of legal training, and to offset this, appeal is usually allowed to a court of general jurisdiction with trial de novo in the latter.

 In California, the system of a single district court for several counties and a county court for each proved unsatisfactory. Often the county court-which was also the probate court-had relatively little business and the district judge, when needed either to hear appeals from the county Court or for oritinal jurisdiction was frequently in another county and unavailable. At times large estates deserving expert supervision came into the charge of poorly qualified county judges. Little, if any, expense was saved by a dual system of District and County Courts and an unhappy rivalry often existed between counties in the same district in the election of the District Judge. For all these reasons it was proposed in the Constitutional Convention of 1878-79 to consolidate these two courts into a single "Superior Court" for each county, to be held by a Superior Judge and to have general civil (including probate) and criminal jurisdiction.

 

PROVISIONS OF THE CONSTITUTION OF 1879   After considerable debate the proposal just referred to was adopted and became Art. VI, § § 5 and 6. In its original form § 5 specifically gave the superior court original jurisdiction "of all matters of probate." The section was rewritten in 1928 to eliminate specification of particular types of civil matters, so that now the probate jurisdiction of that court must be rested upon the grant of original jurisdiction "in all civil cases and proceedings" with certain stated exceptions, or the grant of jurisdiction "of all such special cases and proceedings as are not otherwise provided for." The history of the present section removes any doubt about the inclusion of probate jurisdiction under the foregoing general language; and in any event the matter is clarified by Article 6, § 4, which gives the Supreme Court appellate jurisdiction ,on appeal from the Superior Courts "in all such probate matters as may be provided by law." A system of intermediate appellate courts, the District Courts of Appeal, was created by an amendment of 1904. No change was made in the right of appeal to the Supreme Court from the superior courts in probate cases, thus preserving a theory of direct appeal which had been initiated, as already stated, in 1862. In practice, of course, this right of direct appeal to the Supreme Court in probate cases is modified by the long-established practice of the Supreme Court to transfer such cases to the district courts of appeal,

 

STATUS OF THE PROBATE TRIBUNAL UNDER THE CONSTITUTION OF 1879

 

The Supreme Court in Burchell v. Strube said: "It may here be noted that while some judicial opinions refer in terms to a 'probate court,' strictly speaking, no probate court, as such, has existed in California since the adoption of the 1879 Constitution. It is the superior court exercising probate jurisdiction."

 By contrast with the pre-1879 probate court, the Supreme Court has explicitly stated that the superior court sitting in probate is not "an inferior tribunal of limited jurisdiction." Its present status is ,excellently summarized by Traynor J. as follows: "It is not necessary here to determine whether or not the finding that the sale was in petitioner's best interests would constitute a 'jurisdictional fact,' as that phrase is used in administrative board cases. The probate court is not an administrative tribunal in any sense of the term. Although the procedure and jurisdiction of the superior court sitting in probate are limited by the provisions of the Probate Code, and in that sense 'limited and special' * * * that court is not an inferior tribunal of limited jurisdiction. In certain probate proceedings the superior court has only the power given it by the Probate Code and no more. * * * This does not mean that the Legislature has created a new court. The Legislature has, in exactly the same manner, circumscribed the jurisdiction of the superior court in many of its other proceedings. Nevertheless it remains a court of general jurisdiction.

 "The control by the Legislature over probate jurisdiction does not, therefore, lessen the dignity of decrees and orders of the superior court sitting on probate. ‘* * * the decrees of the probate court in matters, which like these, are clearly within its statutory grant of jurisdiction, have the same effect and are supported by the same presumptions on collateral attack, as the judgments of a court of general jurisdiction.’ * * * Even though the probate court exercises a particular statutory jurisdiction, it has many incidental powers in pursuance thereof. * * * The orders and decrees of the probate court are treated with the same dignity on appeal as any other orders and judgments of the superior courts. * * * " (citations omitted).

 The case of Burchell v. Strube, already mentioned, illustrates the importance of the enlarged competence of the probate tribunal since 1879. That case turned on the construction of Probate Code § 1020.1, which gives superior courts in probate proceedings when called upon to make distribution to the assignee of an heir, devisee or legatee, the power to examine into the fairness of the consideration for the assignment; and if the assignment is found to be unreasonable or tainted with fraud, to refuse to make distribution pursuant to the assignment except upon terms deemed just and reasonable. In an earlier case the district court of appeal had declared that in view of the "special and limited jurisdiction" of the superior court, sitting in probate, a determination under § 1020.1 was effective only in respect to the rights at distribution and was not binding as to the validity of the assignment itself as a contract between the parties. The Supreme Court in the Burchell case rejected this limitation and held that the determination of the superior court, sitting in probate, which reduced the right of an heir-chaser under an assignment from 40% as contracted for, to 10% was res judicata as between the parties when the validity of the assignment was later raised in an interpleader action in the superior court. The legislature, it was held, could enlarge the power of the superior court sitting in probate so as to determine for all purposes the validity of assignments by prospective distributees; and the court found it reasonable to assume that § 1020.1 was intended to confer such general power so that the determination made under that section would be binding in subsequent actions.

 According to the able and extensive research of Professors Simes and Basye, already referred to, the California plan of 1879 (which had already been adopted in Nevada) of conferring probate powers upon a court of general jurisdiction has been followed in a number of western states, including Montana, Utah, Washington, Wyoming, and Arizona, and exists also in Iowa, Indiana and Louisiana, and with some modification in several other states. This plan meets the approval of Roscoe Pound and of Professors Simes and Basye. The latter would carry the plan one step further. Instead of a superior court "sitting in probate" and therefore having in probate so specialized a jurisdiction that a matter cannot be transferred from the probate docket to the regular civil docket but must be started anew, these writers prefer the system prevailing in the states of Washington, Oregon, Utah and Arizona where the superior court's jurisdiction is viewed as unitary, probate being merely part of the aggregate, so that when hearing probate matters the court loses none of its power as a court of general jurisdiction.

 

V. THE PROBATE CODE   Although numerous changes and additions were made as to decedents' estates in the Civil Code and the Civil Code of Procedure in the fifty-eight-year period from the adoption of those codes to the enactment of the Probate Code of 1931, the latter constitutes the next conspicuous milestone in the history of our law of decedents' estates and guardianship after 1873-4.

 

THE BACKGROUND OF THE PROBATE CODE   The biennial legislatures of 1927 and 1929, during the incumbency of Governor Young, must be credited with much in the direction of improvement of the administration of justice in this state. The 1927 session created a special commission to codify the school laws-which resulted in the presentation of the School Code to the 1929 legislature and its adoption; created another commission, viz., on Uniform State Laws; and directed the Legislative Counsel to investigate the relative merits of codification, compilation and revision of statutory law according to the experience of other states-which resulted in a report to the 1929 session giving favorable mention to the organization of the statutes into several subject-matter codes. The 1929 legislature authorized the Governor to appoint a nine-man Code Commission, to revise all of the laws of the state, and report back to the 1931 legislature. An exceedingly able commission was appointed by the Governor. It organized in January, 1930, with Thomas C. Ridgeway of Los Angeles, the second president of the State Bar of California, as its chairman, and Fred B. Wood, the then Legislative Counsel (now an Associate Justice of the District Court of Appeal in San Francisco) as its secretary.

 This Code Commission in its first report dated December 15, 1930, stated: "The present Codes were adopted in 1872. They did not, however, even at that time constitute a complete revision of the law. Since then no general revision has even been attempted. The situation today, therefore, is that there are four Codes and, in addition, about twenty-one thousand laws, contained in fifty volumes, and no one knows what laws are in force and what are not."

 The commission recommended the classification and grouping of the statutes into subject-matter codes, with a tentative list of thirtythree titles. By the time of the second report this list had been reduced to twenty-five titles. As a part of its first report the commission submitted a Probate Code for adoption by the legislature as an example of "what can be done in grouping together cognate provisions now scattered in the Codes and General Laws." The report continued: "It contains a schedule of laws to be repealed as a result of its adoption. This Code was prepared by Mr. Perry Evans of the Code Commission. A preliminary draft was submitted to judges, lawyers and others interested. In the light of criticism received the draft was modified, submitted to, and approved by the Code Commission."

 The Act creating the commission did not authorize substantive changes in the law. The Act read in part: "It shall be the duty of the commission hereby created to immediately enter upon a revision of all the laws of this state including those enacted at the present session of the Legislature. The work of revision shall comprehend the preparation of a statutory record showing the status and disposition of all acts and parts of acts heretofore adopted; the codification, consolidation, compilation or revision of all statutes in force and the express repeal of all statutes heretofore repealed by implication, held unconstitutional by the supreme court of this state, or which will be rendered obsolete by the proposed revision if adopted; and whenever necessary the correction of errors in form or substance including such restatement as will best serve clearly and correctly to express the existing provisions of law." The commission recognized that its job was revision and not introduction of new law. Its first report stated: "The prime purpose of this revision is the cutting away of useless law that is now contained in our fifty volumes of statutes, and the reduction of the living law to manageable proportions."

 However, Perry Evans' work on the Probate Code led the commission to the conclusion that minor, non-controversial changes in substance might well be made as part of the codification, and in response to its recommendation to this effect the Act creating the commission was amended in 1931 by adding to the statement of the work of revision: "The suggestion of such substantive changes in the existing law as may be deemed proper." This authority was sparingly exercised. The commission in its final report called attention to the rule of construction adopted by the California courts in respect to the Codes, namely, that "every presumption is to the effect that no change in the substance of the law was intended."

 

THE ORGANIZATION OF THE PROBATE CODE   What the commission did was to lift from the Civil Code, the Code of Civil Procedure, and the general statutes enacted since the adoption of the original codes, the provisions dealing with decedents' estates and guardianship, rearrange and harmonize these provisions, in many cases restating the language thereof and adding sections which codified judicial decisions. 'Me result was a code with four divisions: Wills, Succession, Administration of Estates of Decedents, Guardian and Ward.

The Probate Code, however, does not contain all the statute law having to do with decedents' estates. For instance: the law of gifts causa mortis is in the Civil Code; likewise the Statute of Frauds provision regarding agreements to devise or bequeath; also the sweeping provisions for release of testamentary as well as other powers of appointment; on the other hand, the inheritance tax and procedure in connection therewith, including provisions regarding joint tenancies, homesteads, family allowance, powers of appointment, transfers in contemplation of death, etc., are in the Revenue and Taxation Code.

 

CONSTITUTIONALITY   The Probate Code was upheld by the Supreme Court in 1932 as against a claim that it violated Article IV of the state constitution in embracing more than one subject and in being a revision of the Civil Code and the Code of Civil Procedure without the reenactment and publication at length of the Acts revised.

 

FEATURES OF THE CODE   Within spatial limits it is only possible here to call attention to certain of the more important alterations in the law, embodied in the Probate Code and representing legislation and judicial decision since -the original codes. Many features of the present law have already been mentioned in tracing the history of the Acts of 1850 and the Codes of 1872.

 (1) Formalities in the execution of wills, the consequences of printed matter near the words of holographic wills, succession by and from adopted children, descent to relatives of a predeceased spouse, were all altered to embody the results of court interpretation ,of previous ambiguity.

 (2) Following a 1913 statute, the Code permitted proof by copy -of the will of a resident when such will was held by the court of another state, and authorized the taking of the deposition of a witness to a will accompanied by a photograph of the will. The first grant -of letters by a court in this state was made conclusive as to jurisdiction. Failure to contest a will was declared not to preclude subsequent probate of another will.

 (3) It was made possible, in the absence of objection, to appoint a surviving partner as administrator. The powers of a special administrator under stated circumstances were enlarged. An executor or administrator might be authorized to continue a business; and might sue for partition.

 (4) Authority to deposit money and other personalty in banks and to secure reduction of bond by so doing was given.

 (5) Judgment upon a rejected claim was made conclusive of the validity of the claim.

 (6) Specifically devised or bequeathed property was not to be used to exonerate devises of realty, even if there were a direction to pay debts.

 (7) Authorization was given for the representative to borrow money and make leases, with procedure therefor.

 (8) The fee of the attorney for the personal representative was to, be on the same scale as the commission of the representative.

 (9) A proceeding for determining heirship, derived from an Act of 1885, was set out; and a similar proceeding to identify heirs, issue or children under a limitation to such persons.

 (10) Continuing jurisdiction was given to the probate court over testamentary trusts, as provided in an Act of 1889. Provision was made for declination or resignation of the trustee and the filling of a vacancy.

 (11) A proceeding to establish the fact of death, initiated in, 1881, was included.

 (12) Comprehensive provision for notice and for appeals appeared.

(13) A very convenient authorization was given the personal representative to pay up to $500 (now $1,000) in money or other property to the parent of a minor on the latter's behalf without need of guardianship.

 

VI. LEGISLATION SINCE THE ADOPTION OF THE PROBATE CODE

 

Although every biennial session of the Legislature amends the Probate Code, the more important additions since 1931 may be briefly stated.

 (1) In 1933 executors and administrators were required to apply for distribution when filing a final account, and if any part of the estate was not then distributed because of failure of heirs or other beneficiaries or ignorance of their whereabouts, distribution was required to be made to the State of California, subject to the right of heirs or beneficiaries to claim within five years or be barred.

 (2) In 1935 the provisions for a trusteeship of the property of persons missing for ninety days were reworded and placed in the Probate Code; and to them was added an important group of sections for administration of the estates of persons missing over 7 years, with a provision for final distribution after 10 years, this to be binding even upon such missing persons.

 (3) In 1939 provision for reception of bids in court on confirmation ,of sales of personalty of over $100 was made and in 1945 sales of realty and personalty as a unit were authorized.

 

(4) In 1941 the court was authorized to inquire into the consideration for any assignment of a distributive share before ordering distribution to the assignee; and if the assignment was found unfair or fraudulent, to disregard the assignment or to allow it on such terms as the court might deem just and equitable. In the same year the right of a non-resident alien to take either real or personal property in California by succession or testamentary gift was made dependent upon the existence of a reciprocal right in citizens of the United States to take such property in the country of the alien.

 (5) In 1943, authorization and procedure for prorating the Federal Estate Tax were enacted; an affidavit or verified petition was required to be received in uncontested probate and guardianship proceedings; and in 1945 it was provided that in uncontested proceedings the evidence of a witness to a will may be received by affidavit, to which is attached a photographic copy of the will.

 (6) In 1945 the Uniform Simultaneous Death Act was adopted and was amended in 1951 to permit the court to enter a decree establishing the order in which the decedents died if found not to have died simultaneously.

 (7) In 1955 the commissions of personal representatives and their attorneys were substantially increased; in connection with the provisions for setting aside estates of not over $2500, the minimum amount of property which disqualifies a surviving spouse or minor child from obtaining such a setting aside was raised to $12,500, this to include property held in joint tenancy with the decedent and any homestead set apart from the decedent's estate; and the important statutory proceeding to determine heirship, Probate Code § 1080, was permitted to be brought as early as four months after the first publication of notice to creditors (instead of only after expiration of the time to Me claims, six months after notice).

 (8) An important improvement in the law as to succession by and from an adopted child was made in 1955 by an amendment to Probate Code § 257. The anomalous rule, prior to 1955, that descent could be traced from, but not through, an adoptive parent (so that an adopted child could not inherit from natural children or other blood relatives of the adoptive parents, and such persons could not inherit from the adopted child) was abolished. Instead, the adopted child is placed in the family of the adoptive parents for all purposes of succession just as if it were a natural child; and the adopted child is removed from the family of its natural parents so far as succession is concerned.

 

VII.LOOKING FORWARD

 

The Probate Code, the first product of the work of the California Code Commission, was an invaluable and, in view of the speed and accuracy with which it was prepared, a remarkable benefit to the legal profession, the legislature, the courts and the people of California. In its arrangement and content it compares favorably with the best of the decedents' estate legislation in other states. No one, however, would dream of claiming either that it is complete or perfect. One of the first recommendations of the newly created California Law Revision Commission deals with the Probate Code and indicates that we may expect excellent assistance from that Commission as to our probate law in the future.

 It would be idle here to attempt to catalogue defects and omissions in the Probate Code as it now stands. However, as suggestive of points where, in the writer's opinion, some amendment is at least worthy of consideration, the following are briefly noted:

 

SUCCESSION   (1) Probate Code § 201.5 should be amended in at least two particulars: (a) To remove the probably unconstitutional provision that the spouse first to die may by will dispose of half of the property acquired in another state, which would have been community property if acquired in California but which is in fact the separate property of the surviving spouse. (b) The principle of tracing as to personal property falling under § 201.5 should be made applicable to the investment of such property in Californa real estate as well as the investment of such property in other personal property, thus eliminating the illogical discrimination which results from the construction of provisions of the Revenue and Taxation Code (equivalent to § 201.5 of the Probate Code) in the Miller case.

 (2) It would seem desirable to place some restriction on the present power of one spouse to will away his entire separate property, leaving the surviving spouse with nothing, in cases where there is no substantial amount of community property. By the same token a parent might well be prevented from cutting off his children, as he now can, where they are otherwise unprovided for. If restrictions such as these are introduced, they should be buttressed by a provision invalidating gifts made by the decedent before his death to a third person in order to defeat the forced share of the surviving spouse or the children, and in this connection a presumption of invalidity might be raised as to gifts made within two years of the decedent's death where the surviving spouse or children are inadequately provided for.

 (3) Probate Code § 254.1 eliminates discrimination against halfblood kindred in respect to succession to personal property, but creates a discrimination against them in some circumstances in respect to real property, and should be amended so as to eliminate the latter.

 (4) In determining a surviving wife's one-half of community property, no distinction should be made as between pre- and post-1927 community property in respect to deducting the federal estate tax paid in the estate of the deceased husband. Such tax should not be deducted in any case. A code provision is necessary to achieve this result.

 (5) A sentence should be added to Probate Code § 221 to the effect that in applying the principle of representation the stocks of descent shall be that generation closest to the decedent in which there is at least one living member. This will eliminate the unfortunate doctrine of Maud v. Catherwood’ which would trace representation back to a generation, no member of which was alive at the decedent's death.

 (6) Suppose H and W live in a non-community property state where H acquires personal property by his earnings, this being his own property although it would have been community property if acquired in California; H gives or wills this property to W and dies; W brings the property to California and dies in California, intestate, and leaving no spouse or issue. The personal property in question will pass to the children of H (W's stepchildren) if any survive W. Such is the holding of the Perkins case, in which, by a bare majority, the Supreme Court read the terms "community property" and "separate property" (or at any rate the latter terms) in Sections 228 and 229 of the Probate Code as applicable to property acquired in a non-community property state. The case leaves important questions unanswered, e. g., suppose no children of H are living when W dies in California, but there is a surviving brother of H. Will the brother take half of the property in question, and W's relatives the other half, as would be true if the property had been community property acquired in California, or will H's brother take all the property to the exclusion of W's blood relatives? The first alternative is seemingly precluded by the literal terms of Section 228. The second is abhorrent to common sense and inconsistent with the theory of Sections 228 and 229 as they apply to property acquired by spouses domiciled in California. Again, suppose in the case we have been considering W, having removed to California after the death of H, invests the money or securities received by her from H in real estate in California. Will such realty at W's death pass according to the peculiar provisions of Sections 228 and 229? If so, the result is inconsistent with the limitation placed on the operation of Section 201.5 as noted under paragraph (1) (b) of the present section.

 It is perhaps desirable that Sections 228 and 229 should apply to property originally acquired by spouses before moving to California. In other words, the Perkins case may represent a sound tendency as to legislative policy. But in any event the sections should be amended so as to make this policy explicit, and the amendment should be drawn with care to answer questions such as raised above.

 (7) Modern thought is unfavorable to succession by remote collateral relatives-the "laughing heirs" who would seem to have little claim on the bounty of a testator. If the testator in fact knew his distant relatives and wanted to benefit them, he might have made a will in their favor. Where to draw the line in cutting out remote relatives is a debatable matter. The Model Probate Code would limit succession to a spouse, issue, parent or issue of a parent, grandparent or issue of deceased grandparents. If this restriction were adopted, Probate Code § 230 would have to be amended to accord therewith.

 (8) The provisions of Probate Code § 259 as to the right of nonresident aliens to take real and personal property by succession or testamentary disposition, which right is made dependent upon a reciprocal right on the part of citizens of the United States, might well be clarified by following the guide of 1 Ore.Rev.Stats. 111.070. The latter prescribes two conditions to be met which are not in the California statute, namely: (1) that citizens of the United States may receive by payment to them within the United States or its territories money originating from the estates of persons dying within the foreign country; and (2) that foreign heirs, devisees and legatees may receive the benefit, use, or control of money or property from the estates of persons dying in [California] without confiscation in whole or in part by the governments of such foreign countries.

 

WILLS   (1) Wills made outside California ought to be recognized as valid to pass both realty and personalty in California if executed in accord with California law or in accord with the law of the place where the will was executed or where the testator was domiciled when the will was executed. The Probate Code at present allows an alternative to California formalities only as to personal property, viz., compliance with the law of the place of the testator's domicil at death -which seems illogical and unsatisfactory on practical grounds.

 (2) Probate Code § § 41-43, placing restrictions on charitable gifts, ought either to be repealed or else so amended as not to be subject to evasion by the simple expedient of inserting an alternative gift (in case the gift to the non-exempt charity is to any extent invalid) to an exempt charity or to some person other than the testator's spouse, brother, sister, nephew, niece, descendant or ancestor. At present the effect of the alternative gift is to validate the gift to the non-exempt charity.

 (3) Probate Code § 53 should be amended to provide that in holographic wills, matter of a non-holographic nature, even though found in the body of the will, may be disregarded if immaterial to the sense and effectiveness of the will, or if added after execution by someone other than the testator with or without the testator's authority. This would overrule Estate of Thom and Estate of Towle, but would confirm the now dubious Estate of Durlewanger. The amendment might go on to provide that holographic changes on, or holographic codicils to, a holographic will may be made by the testator after execution of the will without re-signing and re-dating, provided there is sufficient intrinsic or extrinsic evidence of the testator's intent that such changes or codicils be a part of his will

 (4) It would seem desirable, in accordance with Model Probate Code § 53, to insert a provision that if the testator is divorced after making a will all provisions in the will in favor of the testator's former spouse are revoked, unless the will shows an intent to the contrary.

 (5) Under Probate Code § 73 a devise or bequest of specific property is revoked if the testator later conveys away the property; and is revoked even if he conveys away only a part of the property provided that he declares in the instrument that this partial conveyance shall be a revocation of the gift in the will. Informal revocation in these ways is probably not desirable. It raises a question where the testator later reacquires the property and dies without having altered his will. The section ought to be repealed in toto. The situation to which it is directed is better handled under the doctrine of ademption.

 (6) Probate Code § 350 as to lost wills should be repealed. Its intended safeguards do more harm than good. A section might be substituted to the effect that the proof of lost wills must be clear and convincing; that the contents need only be proven as to their purport and effect and not in haec verba; and that a clause of revocation may be proven even if the other contents of the will cannot be established, this, however, to be subject to the judicially declared doctrine of dependent relative revocation where applicable.

 (7) Probate Code §§ 105 and 106 should be eliminated so that they will no longer encumber the process of construing ambiguities in wills.

 (8) As the law now stands a testator may devise or bequeath property to a trustee under an existing trust, e. g., one established by the testator inter vivos, to be held under the terms of that trust. No new testamentary trust is thereby created; however, no jurisdiction has yet permitted property thus poured over into an inter vivos trust to be affected by amendments to that trust made by the settlor after the date of the will. This leads to unfortunate consequences, for, if there are such amendments after the date of the will, the property poured over by the will must be held substantially under a separate trust. This is not what the testator intended and there may even be a question as to whether effect should be given to the pour-over clause under such circumstances. A section should be added to the probate Code which would expressly permit property devised or bequeathed by the testator to an existing trust to be held by the trustee in accordance with the terms of the trust as in effect at the death of the testator and as thereafter amended, if the trust is amendable after the death of the testator by another.

 

ADMINISTRATION   (1) A statute unifying the probate jurisdiction of the superior court with its other civil jurisdiction is desirable, as discussed in Part IV above. Article VI, § 5, of the Constitution should permit such a statute, but one cannot be certain that an amendment to this article would not be held necessary.

 (2) County clerks should be directed to publish from week to week a schedule listing estates in which there are petitions for probate or for letters of administration, with the names of the petitioner and his attorney and the time of hearing; and likewise a schedule of estates in which there are notices to creditors, with the time limit and place for the presentation of claims. Details as to the contents of the schedules and the media of publication can be worked out.

 The present system of individual publication of notice of probate and notice to creditors should be abolished as unduly expensive and unsatisfactory; and the requirement of posting as to time of hearing on petitions for letters of administration is a useless anachronism. The probate filing fee might be increased as far as necessary to take care of the publication of the above-mentioned schedules, and with the elimination of separate publication there would probably be a net saving to estates.

 (3) A non-resident relative ought to be as much entitled to nominate some resident to be administrator as is a resident relative. This will eliminate a not uncommon situation where the Public Administrator becomes entitled because there are no resident relatives who qualify, and non-residents, apart from the surviving spouse, cannot nominate.

 (4) Probate Code § 736 should be amended to provide against exoneration of realty or personalty from mortgages and deeds of trust unless the will indicates an intent for such exoneration; and a mere direction to pay debts should not of itself be sufficient evidence of that intent.

 (5) A section should be added giving the personal representative a right of retainer for indebtedness to the decedent or to his estate against heirs and devisees of real property who are indebted to the decedent; against legatees of specific personal property, as well as against general legatees; against a substituted heir taking by representation; and against the descendant of a deceased devisee or legatee taking under the anti-lapse statute, Probate Code § 92. The right of retainer should be stated to exist whether or not the claim for which retainer is asserted is secured. The section ought also to give to the superior court in probate power to adjudicate upon the claim asserted against the debtor-beneficiary if the latter is alive. Where the debtorbeneficiary is dead it may be desirable to require that the claim have been presented in his estate and allowed, or reduced to judgment against his estate, in order that the representative of the deceased creditor be entitled to retain.

 (6) It would seem desirable to adopt the Uniform Ancillary Administration of Estates Act and the Uniform Powers of Foreign Representatives Act.

 In conclusion, it may be appropriate to call attention to two excellent aids in the administration of California estates, which have recently appeared, namely, Judge Condee's treatise on California probate practice, and a handbook on the same subject edited by Stumpf and Horwitz.

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