ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.
MR. JUSTICE LURTON delivered the opinion of the court.
An instrument purporting to be the last will and testament of Mary Hoskins Lewis was offered for probate by L. F. Luckett, who was named as executor therein. The petition asking probate averred that the only beneficiary under the will was the defendant in error, Margaret Estelle Jones, and that the decedent left "no heir at law or next of kin so far as petitioner knew, with the exception of David W. Lewis," her husband. Lewis was made a defendant and cited. He appeared, filed a caveat and denied that the will was the will of the decedent. Miss Jones appeared and filed her petition asking that the will be admitted to probate. She averred that Mrs. Lewis had left neither heir nor next of kin, save her husband, but asked that publication be made for unknown heirs. Both petitions asked that issues be framed for trial by a jury. Issues were accordingly settled and a day named by order of the court for trial.
The jury, on February 3, 1908, found the issues in favor of the proponents of the will, the trial having been had so far as appears without objection by anyone, and without any suggestion that there were heirs or next of kin in existence who should be brought before the court. Thus the matter stood until February 24, when the court ordered publication for unknown heirs and next of kin of the said Mary Hoskins Lewis, "and for all others concerned," to appear on April 3d and show cause why the application for probate of the will should not be granted. Publication was duly made.
Pending such publication Lewis moved the court to vacate the order framing issues, and all subsequent proceedings, because there had been no publication for unknown heirs or next of kin of the decedent when the issues were framed or tried. On April 8, this motion was denied,
and on April 15 the will was ordered to be recorded as the last will and testament of Mary Hoskins Lewis.
From that judgment David W. Lewis appealed to the Court of Appeals of the District of Columbia, which affirmed the action of the court below. From this judgment of affirmance, this writ of error has been sued out.
The only question relied upon for reversal is that the Probate Court had no jurisdiction to admit the will of Mrs. Lewis to probate, because the issues under the caveat filed by the plaintiff in error and the trial of those issues by a jury was prior to the publication for unknown heirs and next of kin of the decedent.
The procedure for the probate of wills is to be found in §§ 130 to 141, inclusive, of the Code of the District of Columbia. Section 130 deals with notice when there is no caveat, upon presentation of a petition asking probate, and requires a citation to issue to all persons who would be interested in the estate if no will had been executed, and that if such persons are "returned as not to be found," then there shall be a publication for such persons. No such return was made in this case. No persons were cited or could be cited, except David W. Lewis, who was duly cited as the only known person interested in case there was no will.
Section 140 deals with the trial of issues when a caveat is filed. That section provides that "if, as to any person in interest, the notification shall be returned 'not to be found,' the court shall assign a new day for such trial and order publication." In the present case there was no return of notice, "not to be found," as to any person supposed to be interested.
But § 130 was amended by the act of June 30, 1902, 32 Stat. 526, by a provision in these words:
"In all cases where it is made to appear to the satisfaction of the court that all or any of the next of kin or heirs at law of the ...