78 Cal. 109 | Cal. | 1889
— The decedent died testate in the county of Los Angeles on the twenty-sixth day of April, 1886.
By his will the deceased devised, all his estate to the respondent herein, Simon F. Gless. This will was allowed and admitted to probate on the fourth day of February, 1887, and letters testamentary were on the same day issued to the devisee above named, who was by the will appointed executor thereof.
On the same day in February, 1888, the court below made an order directing service of notice to all persons interested in the estate to appear in said court and file their appearance therein, in person or by attorney, on or before the thirty-first day of May, 1888, and to set forth their claims of heirship, etc., on said estate, as required by the section above referred to.
The foregoing notice was issued and placed in the hands of the sheriff for service on the 16th of February, 1888.
On the same day, after the making of the order above mentioned, Gless filed in the same court his final account as executor of the estate of Oxarart, and a petition for the distribution thereof.
Thereupon, on the same day, the court made an order fixing the twenty-first day of February, 1888, for the hearing of this account and petition.
On the 16th of February, 1888, the petitioner herein, Adele Freeman, served on Gless notice of motion for a continuance of the hearing of the above petition for distribution until the determination by the court of the claim of heirship in the estate of Oxarart, made by her, and of the rights of all persons in the estate, in accordance with the prayer of her petition, filed as above stated.
. The notice stated as the ground of the motion the fob lowing: “ That when a petition has been duly filed
When the matter of the petition for distribution was called for hearing on the 21st of February, 1888, the motion for a continuance was first heard and denied. To this ruling, petitioner, Adele Freeman, excepted, and appeals from the judgment herein.
That the question of the heirship of Adele Freeman might as well have been heard and determined on the hearing of the petition for distribution of the estate is too plain to admit of doubt. That the trial of such question is regular when the application for distribution is brought on for hearing, and no previous determination of such question has been had in proceedings taken under section 1664, we think is clear. This appears from the provisions of the section. (See last sentence of section 1664.)
We cannot conceive that the pendency of the proceeding under section 1664 excludes the usual proceeding for the determination of the question of heirship at the hearing of the application for distribution. When in advance of any determination of the court of the questions involved in the proceeding under section 1664, an application is made for distribution, we see no reason why the court should not hear the latter, determine all questions of heirship, and dismiss the other proceeding.
From the views heretofore expressed, from which it appears that the question desired to be tried could as well be heard and determined at the hearing of the application for distribution as on the proceedings commenced under the section of the statute above mentioned, the question of postponement became one merely of discretion on the part of the court below. The exercise of this discretion by the court, unless abused, this court will not interfere with. In our judgment, the court very properly exercised its discretion in refusing to postpone the cause. If resort is to be had to the provisions of section 1664 to delay the settlement and distribution of estates, it had better never been passed. We have no doubt that the object of its enactment was to expedite such distribution by enabling persons claiming interests in estates to have their claims determined in advance of the application for distribution, and when such application was made and came on for hearing, the court would have no trial of such questions to make, and would at once decree to such person ascertained to be entitled the portion of the estate adjudged to him.
The determination of the proceedings initiated by the
Judgment affirmed.
McFarland, J., Works, J., Sharpstein, J., and Paterson, J., concurred.