24 P.2d 567 | Cal. Ct. App. | 1933
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *527 THE COURT.
Certiorari to review certain orders made by respondent superior court.
Francisco Gomes De Sousa, who died on July 25, 1932, was during his lifetime married to Josephine Sousa. At the time of the marriage decedent had one daughter, Christina, an incompetent, of whose person and estate petitioner since August 12, 1932, has been and now is the duly appointed and qualified guardian. In 1913 said Josephine Sousa obtained an interlocutory decree of divorce from decedent, which provided for the payment by the latter of the sum of $25 each month for the support of the two minor children of the marriage, namely, Manuel and Madeline, who were aged three and four years, respectively. The same order was continued in the final decree. Decedent died testate, and said Madeline De Sousa was duly appointed and qualified as the administratrix with the will annexed of his estate. [1] Said Josephine Sousa filed a claim against the estate, alleging that sums aggregating $4,700 with interest remained unpaid on said judgment. The administratrix took no action thereon; and after the lapse of thirty days the claimant filed in respondent court in the matter of decedent's estate her affidavit, setting forth the above facts, and, based thereon, the court entered its order, granting leave to enforce the judgment against the estate "as provided by law". The court also made therein a finding of the amount unpaid. Following this the claimant commenced suit on the claim in the Superior Court of Alameda County. *528
On February 23, 1933, the administratrix filed in the matter of the estate her petition, praying the order of the court permitting her to compromise said claim for the sum of $3,000. The petition was set down for hearing on March 1, 1933. Petitioner herein as guardian of the incompetent filed objections to the making of the order prayed for on the ground that the claim was barred by the statute of limitations. Following a hearing the court made its order as prayed for.
Petitioner contends that respondent court sitting in probate was without jurisdiction to make the order permitting the claimant to enforce the judgment; further, that there was a want of jurisdiction to make the second order mentioned.
The last order was in effect no more than an approval of the claim for the reduced amount as agreed upon by the claimant and the administratrix. As stated, the claim was presented to the administratrix, who took no action thereon, and the court had not previously passed upon its validity. [2] There is nothing in the law which forbids further consideration by the estate's representative of a valid claim, or its subsequent allowance by the representative and the court, if the right to recover thereon be not barred by statute (11 Cal. Jur., Executors and Administrators, sec. 379, p. 661).
Respondents urge that a compromise in cases of this character is authorized by section 578 of the Probate Code. In view of the foregoing, however, the question whether that section applies to claims against an estate need not be considered.
[3] Section
[4] The statute provides that no claim which is barred by the statute shall be allowed or approved (Probate Code, *529
sec. 708); but it is not contended here that the whole claim was barred, as a portion at least had accrued within five years immediately preceding decedent's death; and when the superior court sitting in matters of probate has jurisdiction of the subject matter of a case it has the power to hear and determine in the mode provided by law all questions of law and fact the determination of which is ancillary to a proper judgment (Burris v. Kennedy,
[5] It has been held that the allowance of a claim is not equivalent to a final judgment (Haub v. Leggett,
[6] The first order, however, presents a different question. There the claimant sought relief under section
[8] While it is our conclusion that the order was in excess of the court's probate jurisdiction, such an order, if made without notice — as appears to have been the case here — may be vacated on motion; and being an order which affects the judgment by way of enforcing it (Lake v. Harris,
[9] As urged by petitioner, the representative of an estate must as a general rule seek a review of a judgment against the estate in a personal action (Bancroft, Code Practice and Remedies, sec. 6371); nevertheless, where it appears that the representative refuses to prosecute an appeal an heir may do so (Holland v. McCarthy,
It is accordingly ordered that the writ be discharged as to the order purporting to grant relief under section