PEOPLE ex rel. VANTINE v. ISAAC N. SENTER, County Judge of Santa Clara County, 28 Cal. 502

By the Court, Shafter, J. This is a petition for a writ of prohibition to the County Judge of the County of Santa Clara, restraining and prohibiting him from exercising probate jurisdiction in the matter of the estate of George Harlan, who died intestate on the 8th of July, 1850.

It is insisted op behalf of the petitioner that the estate of Harlan is not subject to administration under the Probate Act . of 1850, in force at the date of Harlan’s death, for the reason that no proceedings were taken under that Act prior to its repeal, May 1st, 1851, (Acts of 1851, p. 489,) for the settle-meat of the estate; and it is further insisted that the estate is equally unaffected by the Act of 1851, that Act being, as is claimed, prospective and not retroactive in its operation. The counsel for the petitioner relies, in support of these positions, upon Grimes v. Norris, 6 Cal. 621; Tevis v.

Pitcher, 10 Cal. 477 ; .De la Guerra v. Packard, 17 Cal. 193 ; Soto v. Kroder, 19 Cal. 87; and Downer v. Smith, 24 Cal. 114. It is to be observed that the owners of the estates referred to in those decisions all died before the organization of the present State Government, -while in the case at bar the death was not only subsequent to that event, but occurred while the Act of 1850 was in full operation.

It is true that the Court, in the cases cited, say, generally, that the Act of 1851 is not retroactive; still nothing can be considered as having been adjudged by those cases except that estates, the owners of which died under the Mexican system, were not within the purview of the Act. The particular question raised upon this record is now presented for the first time in the Court of last resort.

The Mexican system was superseded in this State by the adoption of the common law on the 13th of April, 1850. (Acts 1850, p. 219.) But the common law method of administration on the estates of persons deceased was opposed in some of its features to the principles upon which our institutions are based and to our long settled habits of public action ; and, furthermore, it must necessarily have failed here for the want of the needful agencies to conduct it. Hence the Probate Act of 1850.

We consider that the Legislature intended that all estates whose owners had deceased prior to the passage of the Act, and subsequent to the abrogation of the remedial system of the Mexican law, should be settled according to the method of the Act. To that extent at least the statute was intended to be retroactive.

The intention could not have been that this class of estates should be closed out according to the Mexican method, for the Mexican system had been superseded before the Act was passed ; and if it was not intended to subject them to the Act of 1850, it follows that it was in the mind of the Legislature to leave their settlement to the rule of the common law—a result which we cannot regard otherwise than absurd. As to the Act of 1851, we regard it as retroactive to the same extent as the Act which preceded it and of which it was but a revision.

We rest this conclusion not only upon the grounds on which the retroactive effect of the Act of 1850 has been argued, but on the further ground that the repeal of the Act of 1850, and the passage of the Act of 1851, were contemporaneous events; and furthermore, the Act of 1851 contains a provision saving all pending cases from the operation of the repeal.

Can it be supposed that the Legislature intended to take a distinction between estates to which the Act of 1850 was in a course of application at the date of its repeal, and other estates like them in every historic and meritorious particular, turning the latter over for settlement to the imperfect and objectionable methods of the common law? There is nothing in the language of the Act which forbids us to consider it as retrospective.

The Act does no more than change the common law mode of administration, and, therefore, it may well be intended that the legislative purpose was that the Act should apply to the “ settlement of the estates of deceased persons,” irrespective of the dates at which the deaths occurred. (Smith’s Com. 308 ; People v. Tibbets, 4 Cow. 384; Dash v. Klecck, 7 John. 447; Golland v.

Lewis, 26 Cal. 48.) To hold that no estate can be settled undei; the Act of 1851 where the owner died in advance of its passage, would be to hold in effect, that the numerous amendments which have from time to time been made to the Act, applied only to thq estates of persons who deceased subsequent to their adoption. A certain class of estates has been withdrawn from the operation of the Act of 1851, by the decisions upon which the petitioner relies; but the case at bar is not within the scope of those judgments.

Those cases can neither be appealed to as precedents nor be used in argument as starting an available analogy. The other points urged by counsel are not of jurisdictional consequence. The petition is denied. Mr. Justice Rhodes being disqualified, did not sit in this cause.