*1 In Nov. A. No. 23765. Bank. 1955.] [L. Administratrix, etc., Peti ARENS, ALICE TREASURE BERNAR tioner, OF v. THE SUPERIOR COURT SAN McLAREN, H. COUNTY, Respondent; DINO MAUDE Party Real in Interest.
Krag & Krag Sweet Donald R. Petitioner. appearance Respondent. No Lonergan & Party Jordan and A. M. for Real Sessions Interest.
TRAYNOR, approximately years J. —On March after Channcey death L. a verified filed in County Court of San Bernardino behalf his widow, May Hartman, her son- in-law, McLaren, R. alleging Charles that the had decedent undivided two-thirds interest in certain real *2 of $4,075 the value of an and that the widow had undivided petition prayed one-third interest therein. The the real that property apart be a lifetime, set to the “for her as widow may proper and for such other relief as premises.” in the following April 18, 1951, the
On the court entered order: for an “The verified R. order McLaren Chas. setting apart provisions of a homestead under the Sections the heretofore filed in this Code, and Probate day of regularly March, came to be heard this 23rd Court, on appears Court, it the the and the 1951; to satisfaction on finds, hearing said Court that provisions of regularly given in accordance with the been having Code; the and the Court Section Probate allega- therefrom the evidence, appearing it that heard the time of are and that at decedent’s tions true widow, May surviving a Hartman, Nellie was death, having duly family, and been made decedent’s it member no homestead had been selected to to Court that appear appearing decedent, and further during lifetime to owned, was as an un- hereinafter described property May Nellie the sur- interest, one-third divided separate as decedent, property, as her and viving widow by decedent, sepa- interest two-thirds remaining to the property should be set aside that real said property, rate surviving widow. to the Hereby follows, land described as that the Is Ordered “It hereby and the same is ... [description to omitted] wit: decedent, the widow Hartman1, Nellie May Hartman, and that of Nellie for the use as homestead absolutely in and shall vest so set aside said real belong to her.” leaving died May Hartman February 3, 1952, On her sought to devise the she in which will 7, 1954, peti September On H. McLaren. daughter, Maude daughter of de Arens, Alice Treasure herein, tioner Hartman, noticed a motion vacate Chauncey L. cedent probate home setting apart the 18, 1951, April
the order grounds that on the May Hartman, absolutely stead (see for of that granted in excess the relief was A.L.R.2d 657, 12 King, P.2d Burtnett v. 33 Cal.2d 661, the court Code, section 333]) under Probate setting jurisdiction acted in excess of its of for instead homestead to Nellie 23, 1954, denied September life. After the court from the record appears “it grounds motion on the the notice as filed, requests were since no for notice remedy given “petitioners’ legally adequate” and that seeks made.” Petitioner timely appeal was a from the Order denying motion a writ of certiorari to review probate homestead. setting vacate the order probate homestead was aside order appealable when the time order final and became in excess expired or not it was (Prob. 1240) whether Code, § Superior Court, (Phelan v. jurisdiction court. does not Certiorari Cal.2d 363, 366 [217 only when can issue lie to the writ review that 1068.) Nor Proc., appeal.” (Code “there is Civ. § a motion vacate can means of this rule be avoided *3 to denying the motion Although the order order. Court, 36 Cal.2d Superior appealable (Kramer vacate is v. not require would that order 874]), review of appealability vacated, and the review of the order to be certiorari. prevents latter a review thereof appeal she could not however, contends, Petitioner because homestead setting apart probate from R by Charles filed she no received notice of thereto, and that pursuant McLaren or of the made order (See remedy. Grinbaum therefore certiorari is an available It Superior Court, 192 Cal. notice petitioner no actual immaterial received the Probate 1200 of petition or of the court’s order. Section given to be prescribes notice Code, which the form require not homestead, does to set to special notice provides, however, actual notice. It office address post requesting it at their given to no made notice. Petitioner request special given “Proof provides: request. 1200 also such Section if it hearing; and made at the giving of notice must said notice court that appears satisfaction in its so find shall regularly given, been final, be conclusive shall it becomes order, when and such on all persons.” April Since the order of quoted above, shows that foregoing met, conditions were order is “conclusive on persons.” all statutory Since no such provision was involved in Court, supra, Grinbaum v. and since the affirmatively record therein the re- showed that quired notice was given, exception pre- an to the rule scribed section 1068 of the Code of Civil Procedure cannot be made under authority of that case.
Since it is clear that certiorari does not do not lie, we question reach the whether or April 18, 1951, not the order of was in jurisdiction. excess the court’s
The proceeding is dismissed. Gibson, J., Shenk, J., C. Edmonds, J., Carter, J., Spence, J., concurred.
SCHAUER, J. —I In my opinion dissent. the trial court was power grant without relief which exceeded that au- (Prob. thorized statute Code, §661), requested in the petition for order to desig- in nated notice of as the relief sought. Furthermore, my opinion it is that the writ of cer- tiorari should be available Treasure Alice Arens for the reason that right she lost her from the order setting aside the homestead part without on her fault because she had no actual making of such order, and if even she had received actual notice she would have had anticipate reason to appear that she should to oppose the granting relief in excess for and statutorily authorized. question acquired by decedent Chauncey by purchase prior L. Hartman marriage to his May Hartman; from appear this it would to have been wholly separate property. However, the order pur- which
ports to set it aside to Nellie appears states that that such “was owned, as interest, by undivided one-third *4 surviving the widow decedent, separate of as her property, and as to remaining two-thirds decedent, interest separate property.” language substantially This follows language petition for apart an order to set a home- apparently stead. It is based a will decedent which was filed with a for letters of administration but probated proof signatures was not because of the of the sub-
627 that The stated not obtained. will scribing could witnesses mutually had May Hartman Chauncey Nellie L. Hartman and realty as his interest agreed he owned a two-thirds as her interest a one-third and she owned separate property decedent’s two- purported it to devise separate property; May remainder de- Nellie for life with thirds interest Alice and Donald. children, Treasure two cedent’s setting probate homestead apart for order property prays the order set hearing the lifetime.” In the notice of “for her hereby “petition prayed for is not stated but relief particulars.” The order finds “that referred for further regularly on said has been superior added). proceeded given” (italics Yet the property absolutely real “shall in and order that vest belong Hartman. to” decedent owned the entire fee in
Whether the the real separate property property, or a two-thirds interest as his authorized court was statute to set aside only period exceeding for a limited the lifetime of the 661 of the Probate Code in ma- provides, widow. Section the court must part, terial select a homestead “out of community property in property or out owned person decedent and or common entitled apart, community homestead or if to have the set there be property property common, and no such owned in then out property separate property of the the decedent. If the separate decedent, of the set is the the court apart only period, a limited designated can set it beyond in no case lifetime the sur- section viving spouse. separate prop- ...” Under this erty decedent, ownership interest of a whether it be the entire property or an in common interest with the survivor can be to the entitled only. limited time (Estate (1935), Cal.App.2d Maxwell 7 641, 642 [46 It been stated and held that an order aside separate homestead to a widow from husband, although erroneous, deceased is not 583, (Estate (1915), Bette 171 Cal. void. 585-586 [153 (1899), ; Estate Euelsman 127 P. Cal. 949] [59 (1892), ; In Moore ; P. re Cal. P. 776] 584] Fergodo (1919), Cal.App. Donohue (1880), 227-228; Burns ; see also Estate Cal. 819] *5 628
Rountree Montague
v.
(1916),
I that, despite with contention the theo availability remedy retical appeal, certiorari should any part be available because without fault on her she had knowledge proceeding the home actual appeal. (Grinbaum v. stead and could therefore ; 528, see also Lee (1923), Court Cal. 635] 1, (1939), Cal.App.2d Court Small Claims resulted in 937], cases there cited statute which [the judgment from the where time situation might expire well defendant without the small claims court against him entry judgment has been having notice 1951, Proc., 117j; Stats, Am. ch. (Code Civ. § since amended 4087, 20; 1; p. eh. Stats. p. 2912, Stats. § § 566, §1)].) 1955, ch. I order of reasons, would annul foregoing
For the absolutely. the homestead 1951, which sets April