By this proceeding for certiorari petitioner seeks a review and annulment of two orders of the San Francisco Superior Court sitting in probate, to wit: an order made on May 14, 1937, setting aside a prior order admitting to probate the last will of John Ivory, deceased, and an order made on March 1, 1938, dismissing the probate proceeding for lack of jurisdiction.
Petitioner is the widow of the decedent and sole devisee and executrix under his will. She petitioned in San Francisco for probate of the will averring that decedent was a resident of that city and that she was his sole surviving next of kin. Notice of hearing of the petition was duly *457 published, and a copy thereof was mailed to petitioner. This latter act purported to be a due compliance with section 328 of the Probate Code, which requires that the notice be served, personally or by mail, upon the heirs of the testator. However, decedent’s mother received no notice, nor was she mentioned in the petition for probate, nоtwithstanding that she would, with the widow, have been an heir to decedent’s separate property if he had died intestate. On May 8, 1936, the will was admitted to probate by an order which recited that “noticе had been given according to law”, and that the testator had died a resident of San Francisco. No appeal was taken from this order, nor was application made under section 473 of the Code of Civil Procedure to set it aside. The probate of the estate was continued, and it proceeded to the point where, on January 25, 1937, a minute order was entered granting а petition of the widow for final distribution. But no decree of distribution was actually filed, and so far as appears, the estate has never been distributed.
On May 1, 1937, the mother of decedent, by the guardian of her person and estate, filed a notice of motion to set aside the order of May 8, 1936, admitting the will to probate upon the ground, first, that the San Francisco court was without jurisdiction of the estate because decedent at the time of his death was an actual bona fide resident of Modoc County, and second, that extrinsic fraud had been practiced by the widow upon the court and the mother by the failure to name her as an heir and give her due notice of the probate proceeding. This motion was never heard, but instead counsel stipulated that the probate order might bе set aside solely because of the failure to name the mother as an heir and give her the required notice, and that the widow might have ten days within which to file an amended petition for probate. Pursuant to this stipulation, and on May 14, 1937, the court made an order vacating the probate order of May 8, 1936. No appeal was taken from the order of May 14th, nor was relief from it sought within the period prescribed by section 473 of the Code of Civil Procedure. The widow almost immediately filed an amended petition for probate, listing both herself and the mother as heirs; and the mother, by her guardiаn, then answered the amended petition, attack *458 ing the jurisdiction of the San Francisco court because of the alleged nonresidence of decedent.
Issues being joined upon the аmended petition and the answer thereto, a hearing was had. The Superior Court expressed the opinion, upon the testimony, that John Ivory was a resident of Modoc County at the time of his deаth and that the San Francisco court could not entertain a petition for the probate of his will. Counsel for the guardian of the mother then proposed findings of fact and conclusions of law and served the opposing party with a copy thereof. After this was done, and before the findings of fact and conclusions of law were signed, the widow then changed to her present counsеl and moved to set aside the order of May 14, 1937, and objected to any further proceedings upon the amended petition. At this time she assumed the position that the probate order of May 8, 1936, wаs a conclusive adjudication on the questions of residence of the decedent and due notice to heirs
(Holabird
v.
Superior Court,
In answer to these claims the mother asserted that the effect of the stipulation was to establish absence of notice to heirs on the face of the record, thus rendering the probate order of May 8, 1936, void on its face and subject to attack
*459
by the proceeding which led to entry of the vacating order of Hay 14, 1937. She contended that the latter order was a proper exercise by the probate court of its equitable powers. It was also urged that as the widow had sought and acted upon the stipulation, she should be estopped to deny it. Extrinsic fraud in procurement of the probate order was сharged
(Purinton
v.
Dyson,
8 Cal. (2d) 322 [
For the purposes of this opinion, as will hereafter appear, it is unnecessary to detail these respective contentions more fully because the questions will not be disposed of in this procеeding. The probate court, after a full hearing, denied the widow’s motion to set aside the order of Hay 14, 1937, overruled her objections, entertained the amended petition for probate, and on the issue of residence found that the decedent was in fact a resident of Hodoc County at the time of his death and left estate therein. Upon these findings, on Harch 1, 1938, an order was enterеd decreeing that the San Francisco court was without jurisdiction over the estate of decedent or to admit the will to probate, dismissing the amended petition for probate, and awarding thе mother her costs. This application for writ of review followed. Petitioner, the widow, asks that the orders of Hay 14, 1937, and Harch 1, 1938, be vacated, and that the San Francisco court be restrained from sending the will to the Superior Court of Hodoc County. By demurrer respondent court challenges petitioner’s right to such relief in this proceeding.
Both of the orders sought to be annulled were apрealable orders. (Prob. Code, sec. 1240.) No appeal was taken from the order of Hay 14, 1937, but an appeal to this court from the order of Harch 1, 1938, has been noticed.
It is the general rule that “where the law allows an appeal from an order or judgment, even when the tribunal making such order or rendering such judgment exceeded its authority in so doing, a writ of review may not be granted. (Code Civ. Proc., sec. 1068;
Hildebrand
v.
Superior Court,
The rule has application to both of the orders here in question. So far as the оrder of March 1, 1938,' is concerned its applicability is obvious. But some additional comment should be made with reference to the order of May 14, 1937. Even though the time for appeal from the order may have expired, the rule applies; the fact that the order is appealable is determinative.
(State Board of Equalization
v.
Superior Court,
9 Cal. (2d) 252 [
Petitioner cites in support of her claim to relief by
certiorari,
a line of eases headed by
Stanton
v.
Superior Court,
The writ heretofore issued in this cause is discharged.
Edmonds, J., Curtis, J., Seawell, J., Shenk, J., Houser, J., and Langdon, J., concurred.