105 Cal. 368 | Cal. | 1895
On November 23, 1893, the heirs at law of Clark W. Crocker, deceased, who are also devisees and legatees under his last .will and testament, made their application to the superior court, sitting in probate, for an order of partial distribution. In their petition they allege, among other things, the appointment of Julia A. Crocker, the surviving wife of the decedent, and one of the petitioners, as executrix of said last will and testament, and that letters testamentary were issued to her from the court on the twenty-
“ 1. That the estate of said decedent is largely indebted.
“ 2. That the shares of said estate of the said parties so applying by said petition cannot be allowed to them -without loss to the creditors of said estate.
“ 3. That the legacy or share of the estate of said decedent, to which either of the parties so applying is entitled, cannot be allowed to either of the said parties so applying without loss to the creditors of the said estate.
“ 4. That no part of the shares of the parties so applying can be allowed to them without loss to the creditors of said estate.
“ 5. That no part of the share or portion of the estate of said decedent, to which either of the parties so applying is entitled, can be allowed to him or her without loss to the creditors of the said estate.”
At the hearing the court made an order allowing and
It appears that the contestants are the sole heirs at law of William H. Wallace, deceased, who died intestate-on the second day of October, 1881. On that day, and for many years prior thereto, he was associated with said Clark W. Crocker, deceased, and one Albert W.. Sisson, also deceased, as copartners under the firm name- and style of Sisson, Wallace & Company, who, as such, were engaged in carrying on a mercantile business; that said copartnership was dissolved by the death of said Wallace, and the said Sisson & Crocker thereby became, and were, the surviving partners thereof; that the claim of contestants, upon which the joint action referred to was originally brought against the said Sis-son & Crocker, as surviving partners of Sisson, Wallace & Company, and now pending against their personal representatives, is based entirely upon their alleged acts, as such, in relation to the partnership business, and for an accounting, and is for the sum of one-
The power of the court to make an order of partial distribution before final settlement is expressly conferred by statute. (Code Civ. Proc., c. XI, art. I, secs. 1658-63.) But it is claimed that the order appealed from is void, because it did not require that “each legatee or devisee obtaining such order should execute and deliver to the executrix a bond,” etc. (Code Civ. Proc., sec. 1661.) The record shows upon its face that more than one year had elapsed from the1 issuance of the letters testamentary to the filing of the petition in this proceeding, “that all claims allowed have been paid,” and the court finds that no injury can result to the estate by reason of such partial distribution.
The existence of these statutory conditions mentioned in section 1663 of the Code of Civil Procedure, and the proviso to the first subdivision thereof, coupled with the joint and several liability of the estates of said Sisson and Crocker for the full amount of contestants’ alleged claim, and the withholding from distribution property of both estates aggregating in value the sum of four hundred and sixteen thousand dollars to await the result of the action pending thereon, show that the court pioperly exercised the discretion vested in it by the statute in dispensing with the requirement of a bond. (Estate of Levinson, 98 Cal. 654.)
The finding by the court that the estate was but little indebted is objected to by appellants upon the ground
Nor is the objection well founded that the petition is defective, because it describes the petitioners as “heirs at law.” This proceeding is but a step in the ordinary course of administration, and the fact that petitioners are described in the petition as heirs at law, instead of devisees and legatees under the will, is entirely immaterial, the court having judicial notice of the will at every stage of the proceeding.
The further objection to the petition that it is nugatory, because not presented by a single claimant, is equally untenable.
The remaining questions discussed by counsel, orally and in their briefs, are not necessary to be considered.
Let the order be affirmed.
De Haven, J., and McFarland J., concurred.