(dissenting) — Inasmuch as the will of Carrie A. Hyde was never probated, nor offered for probate, the trial court properly refused to consider it as evidence in this case. The majority so holds, and I concur in that view. Under the circumstances, then, the court did the only thing that it could do. It proceeded with, and determined, the case before it on the evidence that had been properly admitted.
The majority opinion, as I construe it, holds that the trial court committed error because it did not suspend all proceedings until the will had been probated. But, in my opinion, the court was not required, nor did it have authority, to take that course. The court could not compel anyone to probate the will, and the law does not require it.
Rem. Rev. Stat., § 1379 [P. C. § 10048], merely requires the person having custody or control of a will to deliver it to the superior court or to the executor named in the will within thirty days after receiving knowledge of the death of the testator, with the further requirement that an executor having custody or control of the will shall within forty days present the same for probate or else present it with his written refusal to serve as executor.
In this case, the provisions with reference to the executor do not apply, for the simple reason that Charles H. Hyde was the executor named in Carrie A. Hyde’s will, and he was dead at the time that her will *96was discovered. Hence, under the statute, the sole duty of Robert H. Hyde, the son, who then had custody of the will, was to deliver it to the superior court. He could elect whether or not he would offer it for probate, but he could not be compelled to have it probated, nor did he offer to do so. Of course, the inheritance tax supervisor could not be compelled to probate the will.
It is true that, had the will been probated, it might have made some difference in the result reached by the trial court in the pending proceeding, but, without an established will, the court was authorized, and, I think required, to determine the issues which the parties had submitted, solely on the evidence actually before it. This the court did, and therefore it can not be charged with having committed error.
The will of Carrie A. Hyde may still be offered for probate by anyone interested in her estate, but in this proceeding, and upon the issue of the amount of inheritance tax payable, the parties have made their case, and the judgment should be made to rest thereon.
For these reasons, I dissent.