Afterwards the following stipulation was filed: 66 Stipulation as to judgment. "[Title of court and cause.] "It is hereby stipulated that the proponents of the will of said Morris Freud, deceased, will take no exception on motion for new trial, on appeal or otherwise, to the form of the judgment herein in favor of contestant, Sophia Alexander, nor because the said judgment sets aside the proposed will and the probate thereof, only as to the said contestant. 66 "November 17, 1884. "COWDERY & MCCUTCHEN, "Attorneys for Proponents. "Indorsed: Filed November 17, 1884." On the same day judgment was entered, by which it was adjudged that the probate of the will be annulled as to contestant, Sophia Alexander, and that probate of said will be and the same is hereby annulled and revoked to the extent that said contestant, Sophia Alexander, is not bound by said will, and shall take, upon distribution of the estate of said deceased, the same share as she would have taken if the said Morris Freud had died intestate." There can be no question as to the character of the judgment which the statute directs to be entered on such a verdict. The probate is annulled and revoked, and the powers of the executor cease. (Code Civ. Proc., secs. 1330, 1331.) No objection is raised here to the judgment, but the record shows that it is void, and a review of it upon an appeal would be a vain thing. The cause is remanded, with directions to vacate the unauthorized judgment, and render that required by law. MCKINSTRY, J., and PATERSON, J., concurred. [No. 12205. Department One.—October 7, 1887.] IN THE MATTER OF THE ESTATE OF MARY CUNNINGHAM, DECEASED. ESTATE OF DECEDENT-SALE OF REALTY-PUBLICATION OF NOTICE-ORDER FOR.-Section 1537 of the Code of Civil Procedure, requiring a notice of the sale of real estate of a decedent to be published for "three weeks successively," simply indicates the time during which the sale must be advertised, and not the manner of the publication. Under section 1705 of the code, the court may order the publication to be made for a less number of times than each issue of the paper in which the notice is to be published. APPEAL from an order of the Superior Court of the city and county of San Francisco confirming a sale of real estate of a deceased person. The facts are stated in the opinion of the court. R. Percy Wright, and Wilson & Wilson, amici curia, for Appellant. Thomas F. Barry, Naphtaly, Freidenrich & Ackerman, and M. I. Sullivan, for Respondents. TEMPLE, J. This an appeal from an order confirming a sale of real property, and the ground of the appeal is that it appears from the return of sale that the notice of sale was published in a daily newspaper once a week for three successive weeks. Section 1547, Code of Civil Procedure, directs that the notice shall be published in a newspaper for three weeks successively. It is contended that the notice must be published in each issue of the paper, and that on those days on which it is not so published, it is not published at all, and therefore in such case it will not be published for or during three weeks. The phrase "three weeks successively" evidently means the same thing as three successive weeks." It simply indicates the time during which the sale must be advertised, and not the manner of the publication, as that it shall be published successively during the period. The word "successively " refers to weeks, and not to the publications of the paper. It is, therefore, within the provisions of section 1705, Code of Civil Procedure, a case in which the judge or court may order a publication for a less number of times than each issue of the paper; that is, it is not otherwise expressly provided. In this instance such an order was made by the court. It is claimed that section 1705 only applies to publications ordered by the court; but this is not the language of the code. "When any publication is ordered," may as wel! be held to include all notices ordered by the statute. Indeed, if it is not so read, it will be found to apply to very few publications required. And no reason is apparent why the dispensing power should exist as to the publications directed by the court, and not to those ordered in probate proceedings by the statute. Beside, all the probate proceedings are under the direction of the probate judge. The word "ordered' in the section was probably intended to have the same meaning as the word "required." The order of sale having been made, the administrator was thereby required to make the publication. The question is not whether the court can direct in what paper it shall be advertised, but whether, under section 1705, the court can dispense with the publication in each issue of the paper. In this case, it is suggested that the appellant, as administrator, was contumacious, and refused to proceed with the sale which, at the instance of creditors, had been ordered. To force obedience, an order was made directing the administrator to act, and specifically directing how he should proceed. We think the record discloses no error. As it appears very plainly that the order must be affirmed on the merits, we have not thought it necessary to determine whether the proper record is before us. Order affirmed. MCKINSTRY, J., and PATERSON, J., concurred. Hearing in Bank denied. [11675. Department One.-October 7, 1887.] ELIZABETH SIDDALL ET AL., APPELLANTS, V. EXECUTORS ETC. OF ELIZABETH D. TRAYLOR, DECEASED, ET AL., RE SPONDENTS. EQUITY-ACTION FOR CONSTRUCTION OF WILL-JURISDICTION OF SUPE RIOR COURT.-Conceding that the Superior Court has jurisdiction in a proper case of an action brought to construe a will which has been duly admitted to probate, still it is not bound to entertain such an action, and should not do so, except in a case where there is some special reason for seeking its interposition other than a mere desire to obtain the opinion of a court of equity as to the proper construction of the will. ID.-ACTION TO DETERMINE HEIRSHIP.-Pending proceedings in probate for the settlement of the estate of a deceased testator, a person claiming to be his heir at law, but who takes nothing under the will, cannot maintain an action in equity for the purpose of determining his heirship and having the residuary and other legacies in the will pronounced invalid, when no special reasons are shown why such matters should be determined in advance of the final decree of distribution in the probate proceedings. APPEAL from a judgment of the Superior Court of the city and county of San Francisco. The facts are stated in the opinion of the court. D. William Douthitt, for Appellants. The Superior Court as a court of equity has jurisdiction of the action. (Rosenberg v. Frank, 58 Cal. 403; Payne v. Payne, 18 Cal. 292; Williams v. Williams, 73 Cal. 99; 1 Redfield on Wills, 492, 493; Bowers v. Smith, 10 Paige, 194; Kiah v. Grenier, 56 N. Y. 220; Post v. Hover, 30 Barb. 312; Chipman v. Montgomery, 4 Hun, 739; Bailey v. Briggs, 56 N. Y. 407; De Laurencel v. De Boom, 67 Cal. 362.) Olney, Chickering & Thomas, F. M. Pixley, John F. Swift, Robert Harrison, and Selden S. Wright, for Respondents. A suit in equity to construe a will can be entertained only at the instance of the executors, and then only in cases of great importance, where the aid of a court of equity is indispensable to direct the executor and save delay and expense. (Bowen v. Bowen, 38 Ohio St. 426; Chipman v. Montgomery, 63 N. Y. 229; Crosby v. Mason, 32 Conn. 483; 1 Pomeroy's Eq. Jur., secs. 348, 349; 2 Story's Eq. Jur., sec. 1065.) TEMPLE, J. This action is brought against the executors of the will of Elizabeth Traylor, deceased, and a great many other persons who do not appear to have any interest in the estate, or in the controversy, and no reason is shown in the complaint why they are or should be joined as defendants. The plaintiffs are not mentioned in the will, and claim no interest under it, but they aver that either plaintiff Siddall is the sole heir, or that her co-plaintiff, White, is alone entitled to share the estate with her as heirs at law. By the terms of the will all the property of the testatrix is disposed of, but the complaint avers that various legacies are void, and among them the residuary bequest, and that the legal and valid legacies being paid, there will be a large sum undisposed of. The plaintiffs aver that the executors claim that neither of the plaintiffs are heirs at law to said estate, and that all the legacies are legal and should be paid; and they ask that the legacies may be declared void, and that the plaintiffs, one or both, are heirs at law to said estate, and for general relief. LXXIII. CAL.-36 |