I cannot concur in the conclusion that the superior court could properly entertain the petition for the probate of the alleged later will, in the face of the judgment admitting the will of January 13, 1896, to probate. That judgment had become final, and more than one year having elapsed from its entry without any contest, the probate of such will is conclusive against the world, except infants and persons of unsound mind. It is so expressly provided by section 1333 of the Code of Civil Procedure. The whole matter of wills is regulated in this state by statute. Under our statute, as has often been said, the proceeding in proof of a will is a proceeding in rem, "to determine the legal status of a written instrument," in which all persons are required to present their claims and by which the world is bound. (See Estate of Baker, 170 Cal. 578, 585, [150 P. 989]; Estate of Allen, 176 Cal. 632, [169 P. 364].) A judgment *Page 587 admitting a written instrument to probate as the will of a deceased person is necessarily a judgment that the instrument is the will of the deceased, which, of course, means that it is his last and only effective will. When a paper is offered for probate as the will of a deceased person, if any person interested claims that it is not the true will for the reason that there is a later will, he unquestionably may contest the paper offered on that ground, for his contention is one "substantially affecting the validity of the will" offered. (Code Civ. Proc., subd. 4, sec. 1312) As in the case of original probate, such a contest may be made after probate on the ground that the admitted will is not the will, because of the execution of a later will. The petition for probate necessarily tenders to the whole world the issue that the paper offered is the will of the deceased, and the whole world is bound by the judgment except in so far as the statute permits further proceedings.
The only further proceeding authorized by the statute is the contest of the validity of the admitted will, which must be instituted within one year from probate, with the right to infants and persons of unsound mind to so contest within one year after their respective disabilities are removed. It is my opinion that in the absence of any such contest within the year, the status of the instrument as the last will of the deceased is conclusively and for all time established as against all interested parties in so far as any proceeding in the probate court is concerned. This it seems to me is substantially recognized in all our previous decisions, for even in Estate of Walker, 160 Cal. 547, [36 L.R.A. (N.S.) 89, 117 P. 510], all the justices concurred as to the question of finality of the proceedings in probate, and the probate of the subsequently discovered will was justified by the majority of the justices concurring in affirmance as being solely for the purpose of establishing a foundation for the prosecution by the beneficiaries of their rights in equity. It was certainly expressly recognized in Estate of Marx, 174 Cal. 762, [L.R.A. 1917F, 234, 164 P. 640], as is shown by the majority opinion herein.
The effect of the majority opinion in this case apparently is that a decree admitting a will to probate is not an adjudication that the will so admitting is the will of the deceased, but simply that it is an instrument that was at one time duly executed as a will, which will stand as the will pending the production and *Page 588 probate of a later instrument so executed. Such I do not believe to be the theory of our statutory system relative to the proof of wills. Therefore, I am constrained to dissent from the judgment.
Lawlor, J., concurred. Rehearing denied.
Lawlor, J., Olney, J., and Angellotti, C. J., voted for a rehearing. Shaw, J., Wilbur, J., and Lennon, J., voted against a rehearing.
Melvin, J., was absent.