
    In re Will of J. M. (James) Young.
    No. 44112.
    October 26, 1937.
    C. A. Robbins, for appellants.
    Chas. D. Yan Werden, for appellees.
   Sager, J.

The record in this cause is very short, and presents some peculiar aspects.

On June 25, 1937, Lenore Ford, proponent as above stated, filed a petition to probate what she claims to have been the last will and testament of Young, alleging the same to have been duly executed and published as such. No copy of the will was attached to the petition, and the motion to dismiss on the ground that the petition shows that only one witness signed the will was overruled. No evidence of any kind was offered, nor was the will or a copy thereof attached to the petition or offered in evidence. As a consequence, this appeal presents, not the validity of the will itself but the query as to whether the petition of Lenore Ford was vulnerable to the motion to dismiss.

Since we are unable to find that a petition for probate of a will is necessary under our practice, it appears to us that this motion to dismiss was a futile gesture which would have had no effect even if it had been sustained. The statute (Code section 11862) requires any person having a will in his possession to file it with the clerk immediately upon the death of the testator. Thereupon and thereafter a contest may be undertaken in the manner provided should anyone be interested in bringing forward proof of the invalidity of the will.

Finding no error in the action of the trial court, its ruling on the motion should be and it is affirmed. — Affirmed.

HamiltoN, C. J., and Anderson, Donegan, Mitchell, Sti-gbr, Bichards, Kinteinger, and Parsons, JJ., concur.  