85 P. 145 | Cal. | 1906
M. Young died, leaving a last will, which was admitted to probate in the superior court of Santa Cruz County, and letters testamentary thereon were issued to A. St. Clair and William Armstrong on the 27th of April, 1903. On December 12, 1904, Pauline Young Hyde, one of the appellants, filed a petition for partial distribution, in which she alleged that the decedent had left as his sole heirs four children, of whom she was one, and that said decedent had, by an omission not appearing to be intentional, failed to provide in his will for any of his said children. The executors met this petition by a motion to strike the same from the files, and a similar motion was made, upon notice to the petitioner, by K.A. Osborn and three others named as residuary devisees in the will. Subsequently, a similar petition for partial distribution was filed by Sarah Young, claiming to be one of the children and heirs of M. Young, and motions to strike this petition from the files were made by the executors and the four devisees above mentioned. The petitions and motions having been submitted, the court made an order, in which it "adjudged and decreed that the said petitions of Pauline *175 Young Hyde and Sarah Young, and each of them, be, and the same hereby are, denied and dismissed." From this order the petitioners prosecute this appeal.
The points made by the appellants for reversal appear in a bill of exceptions. This bill contains a recital by the judge of the trial court to the effect that the draft of the proposed bill of exceptions had not been served on the respondent devisees within the time allowed by law. Said devisees objecting to the settlement of the bill, the judge sustained their objections and refused settlement of the bill "so far as it relates to or purports to in any way bind said devisees," and settled it "so far as it relates to the executors." It is now contended by the respondents that the order must be affirmed for want of a bill of exceptions binding all the necessary parties to the appeal.
Under section 650 of the Code of Civil Procedure, the draft of a bill of exceptions, or a copy thereof, must, within ten days after notice of entry of judgment, be served upon the adverse party. The phrase "adverse party" is also found in section 940, relating to service of notice of appeal, and as used in that section has been construed many times by this court. Such "adverse party" is defined in Senter v. De Bernal,
No doubt the phrase "adverse party" is to be given a similar interpretation as applied to service of bills of exception. In the present case, the devisees respondent were "adverse parties," who were entitled to service of a draft of the bill. They, as claimants under the will, would be directly and most injuriously affected if the appellants should succeed in reversing the order here appealed from, since, if the facts alleged in the petition for partial distribution should be established, the petitioners (together with their brother and sister) would succeed to the entire estate. The rights of the devisees could not be protected if any modification or reversal of the order should be made. And such devisees, having appeared in the lower court to resist the application for partial distribution, are parties who appear by the record to be adverse. Indeed, the devisees are the only parties to the record having a substantial interest in opposing the distribution sought. The executors, while authorized to resist an application for partial distribution (Code Civ. Proc., sec. 1660; Estate of Kelley,
If, then, the devisees who appeared and resisted the petitions in the superior court were adverse parties who were entitled to service of a draft of the bill of exceptions, what is the effect of failure to so serve them? A failure to serve some of the necessary parties does not require or authorize the trial court to refuse to settle the bill at all (Gutierrez v. Hubbard,
But it is contended by the appellants that no bill of exceptions was necessary, and that without it the record contains all that is necessary for a review of the order complained of. In fact, the entire transcript is made up of the bill of exceptions, followed by a notice of appeal, and a stipulation (subject, as to the devisees, to all objections and exceptions) that the "foregoing is a full, true and correct transcript on appeal," and that an undertaking has been filed. If this be regarded as a sufficient authentication of such papers contained in the bill as would constitute what may be called the judgment-roll, we find as to each petitioner a petition for partial distribution, based on the theory that such petitioner was a child of the decedent, who had unintentionally omitted in his will to provide for her; two demurrers to the petition; two motions to strike the petition from the files on the ground, among others, that theretofore a similar proceeding on behalf *178 of the petitioner had terminated in a final judgment denying the relief sought, and adjudging that the omission by the testator to provide for the petitioner was intentional, and that she was not entitled to any share of the estate; and an order, which, after finding in support of such allegation as to a prior judgment, denies and dismisses the petition for partial distribution. This shows no error. Assuming the finding of the lower court to have been sustained by the evidence (as, in the absence of a bill of exceptions, we must) the prior adjudication against the rights of the petitioners concluded them on this hearing. In this discussion we treat the motion to strike from the files as substantially an answer. It raised issues of fact, on which evidence was taken, and findings made. If, however, such motion is not to be treated as an answer, the petitioners are not helped. In that view, there is nothing in the record to be considered except the petitions, the demurrers and the order dismissing and denying the petitions, and on the face of these papers no error appears. The facts recited and found in the order fully justify the conclusion reached.
The foregoing views necessitate the affirmance of the order appealed from without a determination of the points made by the appellant. It is, perhaps, unfortunate that the appeal cannot be decided on the merits of the questions litigated in the lower court, but this result cannot be avoided without depriving the respondent devisees of clear and substantial rights.
The order is affirmed.
Angellotti, J., and Shaw, J., concurred.