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District Court of Appeal, First District, Division 1, California.


Civ. 9627.

Decided: December 20, 1934

Hubbard & Hubbard, of San Francisco, for appellants. John R. Tyrrell and W. L. A. Calder, both of San Francisco, for respondents.

The appeal here is from an order overuling appellants' objections to the final account of respondent executors, and from an order settling the final account and the amendments thereto, and decreeing distribution of the estate.

Julius Soboslay, a resident of the city and county of San Francisco, state of California, died testate on the 22d day of April, 1930, leaving estate in said city and county of San Francisco and elsewhere in the state of California. In his will, executed on the 6th day of April, 1929, the decedent made certain cash legacies aggregating $21,000, and also devised to respondents herein a tract of land in the county of Madera, state of California. He directed that the residue of his estate be converted into cash and the proceeds paid in equal shares to Protestans Orszagos Arvahaz (Protestant Orphan Asylum) of Szegenyhaz-er-I sz. City of Budapest, kingdom of Hungary, and to Sarospataki Reformatus Polskola (Protestant College of Sarospatak) in the city of Sarospatak, province of Zemplen, in said kingdom of Hungary. These residuary legatees are the appellants herein.

The respondents Albert J. Fankhauser, Emma Ungar, and Clara Baldizzone were named in said will as executor and executrices thereof, respectively, and, after due proceedings had and on the admission of the will to probate, were so appointed. Letters testamentary were issued on the 15th day of May, 1930. On February 5, 1932, respondents filed their first and final account and petition for distribution, from which it appeared that there remained on hand a cash balance of $60,846.54 available for payment of legacies and expenses incidental to the closing of the estate. The residue of the estate included, in addition to the said sum in cash, the tract of land in Madera county devised to respondents, and certain shares of stocks. No objections were filed to said account, and on the 17th day of February, 1932, an order was made settling the same, and a decree of distribution entered reciting that the estate to be distributed in accordance with the terms of the last will of the deceased consisted of $61,238.35 cash in the hands of the executor and executrices, certain shares of stock described in the decree, and the Madera county property. The decree distributed said residue as follows: Cash legacies aggregating $21,000 to the persons designated in the will, the Madera county property to respondents, and all the rest, residue, and remainder of the estate to appellants.

On May 5, 1932, there was filed on behalf of appellants notice of a motion to be made on May 13, 1932, to vacate and set aside the order settling said account and the decree of distribution, on the grounds said account was incomplete and erroneous and was inadvertently made by the court, and that appellants had failed to appear and object thereto because of surprise, inadvertence, and excusable neglect. Accompanying the notice was an affidavit of the attorney in fact for appellants, setting forth that, subsequent to the entry of said order and decree, affiant had been advised by the executor and executrices that the said account was erroneous and incomplete, and that they refused to make distribution in accordance with the decree. On May 5, 1932, the same day on which appellants' notice of motion and affidavit was filed, an affidavit was filed on behalf of respondents, setting forth that in the preparation of the final account there was inadvertently omitted therefrom two claims filed against said estate by respondents Fankhauser and Baldizzone in the aggregate sum of $30,000, which had been paid by the executor and executrices to two of their number as claimants and which sum should have been deducted from the amounts set forth in the decree as available for distribution. Following the filing of the affidavit on behalf of respondents, and without awaiting a hearing on appellants' motion, the court on May 5, 1932, made an order based on the affidavit filed on behalf of respondents, by which order the decree of distribution theretofore entered was set aside, and an amended decree of distribution “to conform with the true facts and to correct the error in the decree of distribution made and entered herein” was ordered filed. No further proceedings were had on appellants' motion to vacate the order settling the account and the decree of distribution. Thereafter, and on June 3, 1932, respondents filed an “amendment to their first and final account.” This amendment set forth that there had been inadvertently omitted from the previous account two claims aggregating $30,000, but that in all other respects said account was correct; also that, instead of a cash balance of $60,846.54 in the hands of respondents, the true cash balance was only $30,846.54, out of which inheritance taxes aggregating $10,129.34 were to be paid, leaving a balance of $20,717.20 in cash available for distribution. This sum, being less than the $21,000 cash legacies provided for by the will, left no cash residue for distribution to appellants.

On June 10, 1932, appellants filed exceptions to certain items set forth in the original account, and also to each of the items set out in the amendment to the account. Subsequently, and on July 8, 1932, appellants, by leave of court, filed amended exceptions to both the first and final account and the amendment thereto. An answer to the amended exceptions was filed by respondents on August 23, 1932. After the filing of the amendment to the account, and prior to the filing of the exceptions of June 10, 1932, two hearings were held by the court, at which testimony was taken, but these hearings seem to have had for their purpose an inquiry into the necessity of requiring a bond of respondents for the faithful performance of their official duties. However, the account with its amendment, the exceptions thereto, and the answer to these exceptions, came before the court on September 2, 1932. Evidence was taken at that time, and respondents Fankhauser and Baldizzone then for the first time asked, and were granted, permission to amend their claims, and the further hearing of the matter was continued to a later date. On October 4, 1932, amended claims were filed by said respondents Fankhauser and Baldizzone; on October 10, 1932, appellants filed objections to said claims, to which objections said claimants interposed an answer. The matter again came on for hearing before the court on November 2, 1932, and after further evidence was adduced the matter was submitted for decision. Thereafter, and on March 13, 1933, findings were made by the court and a decree ordered overruling the exceptions of appellants to the account and settling said account, and thereafter judgment and decree in accordance therewith was made and entered settling the first and final account and the amendment thereto, and decreeing final distribution. From this judgment and decree appellants prosecute this appeal.

The claims originally filed by respondents Fankhauser and Baldizzone, and for the payment of which they and the respondent Ungar, as executor and executrices, inadvertently omitted to claim credit in their original account, alleged an indebtedness to them from the estate of decedent in the following language: “To money loaned to the decedent at his special instance and request, as evidenced by promissory note, copy of which is hereto set forth.” Following which was set forth in the claim of Baldizzone a copy of a promissory note dated April 6, 1928, for $10,000, payable to the claimant, due four years after date, without interest, and signed by the decedent. The claim of Fankhauser contained a copy of a note in identical language, except as to amount, which was $20,000. These claims were filed on July 8, 1930. The date of first publication of notice to creditors was May 17, 1930, and in the original final account and petition for distribution filed on February 5, 1932, it is alleged that notice to creditors was given, that the statement provided by section 1491a of the Code of Civil Procedure had been filed in due time, and that “more than six months have expired since the first publication of notice to creditors.” At the conclusion of a hearing on the objections to the amendments to the final account, held on September 2, 1932, the attorney for respondents announced in open court as follows: “I ask now for permission to amend those claims in conformity with the facts as brought out by the evidence here. * * * The claim now states to money loaned to the decedent during his lifetime, but we want to amend it to show that it was money that the decedent held in trust for these people.” Objection was made by appellants, and, although the court announced that the amendments would be allowed, the further hearing was postponed. No other application or order was made in reference to filing such amendments and, as said before, amended claims were filed on October 4, 1932. The theory of respondents that the decedent held moneys in trust for the claimants would appear to be predicated upon the following facts: Elisa Soboslay, the wife of deceased, died on March 9, 1928. She left in the possession of her surviving husband a writing dated August 15, 1927, which respondents contend is a will, while appellants claim that it is precatory only, and not testamentary in nature. Because of the conclusions we have reached, it is not necessary to determine this question, nor whether, under the rule laid down in Re Estate of Phillips, 203 Cal. 106, 263 P. 1017, the deceased wife had the power of testamentary disposition over any of the community property of the parties. Suffice it to say, that the instrument is addressed “To my beloved family, Emma Ungar, Clara Baldizzone, Albert Julius Fankhauser,” and contains this language: “Would like each of above named to receive $15,000.00.” Within a month after the death of his wife, Julius Soboslay delivered, to each of the respondents, bank stock of the value of $5,000, and also delivered to respondents the two promissory notes which form the basis of the claims of respondents Fankhauser and Baldizzone. Accompanying the delivery of the bank stock and notes, Julius Soboslay also delivered a letter asking that the recipients accept the bank stock and notes as “a deed of gift * * * in memory of my dear wife and your dear sister Elizabeth Soboslay.”

The amended claims so filed on October 4, 1932, each contain a copy of the appropriate promissory note, and also allegations that Elizabeth Soboslay on August 15, 1927, executed her last will and testament; that the same was duly admitted to probate on August 8, 1932; that Julius Soboslay, in order to carry out the terms of the will of his deceased wife, executed the promissory notes and delivered said bank stock.

To explain the reference in said claims to the admission to probate of the will of Elizabeth Soboslay, it is to be noted that on August 20, 1928, some five months after the death of Elizabeth Soboslay, respondent Fankhauser filed in the superior court of the state of California, in and for the city and county of San Francisco, his petition for letters of administration, and therein alleged that “due search and inquiry have been made to ascertain if said deceased left any will, but none has been found, except a letter or writing of said deceased, which your petitioner alleges is not of testamentary character and is not a will, and according to the best knowledge, information and belief of your petitioner, said deceased died intestate.” The witness Politzer, who acted as attorney for the petitioner in said proceeding, testified that on the hearing of said petition he exhibited said writing referred to to Judge Graham, who heard the matter, and that Judge Graham then ruled the instrument was of a precatory nature and not testamentary in character, and thereupon made an order finding that Elisa Soboslay died intestate, and directing the appointment of respondent Fankhauser as administrator. Said respondent testified that the sole purpose of that administration was to enable Julius Soboslay, the husband of Elisa Soboslay, to prosecute an action, which was subsequently filed, to quiet title to certain property in Madera county which stood in the name of both husband and wife. A decree in that action was later made and entered, and no further proceedings were had in that estate proceeding. However, on July 26, 1932, some five months after the original decree of distribution was entered in the estate of Julius Soboslay, deceased, one Robert T. Iberson, filed in the superior court of the state of California, in and for the city and county of San Francisco, a petition that the writing referred to in the prior petition of respondent Fankhauser be admitted to probate as the last will and testament of Elisa Soboslay, deceased, and that he be appointed administrator with said will annexed. The petition recited that Iberson had been nominated as such administrator by respondent Fankhauser. On August 8, 1932, an order was made, admitting said will to probate and appointing Robert T. Iberson as administrator with said will annexed. He duly qualified, and letters were accordingly issued to him.

All the proceedings taken herein, subsequent to the order settling the final account as originally filed and the decree of distribution entered at that time, are predicated upon an order made on May 5, 1932, which reads as follows: “Upon reading and filing the affidavit of John R. Tyrrell, attorney for the executors of the above-entitled estate, from which it appears that two claims aggregating the sum of Thirty thousand ($30,000.00) dollars were not included in the said Final Account now allowed as a credit in the account of the executors, although heretofore approved by this Court, and good cause appearing therefore, it is ordered that the Decree of Distribution heretofore made and entered in the above entitled matter, be and the same is hereby set aside, and that an Amended Decree of Distribution be filed to conform with the true facts and to correct the error in the Decree of Distribution made and entered herein.” The proceedings leading up to this order may be reviewed as follows:

1. On May 5, 1932, there was filed, on behalf of appellants, a notice of motion to be heard on May 13, 1932, which notice was accompanied by an affidavit alleging facts showing surprise, inadvertence, and excusable neglect. The notice stated that the motion would be for an order vacating and setting aside the decree settling the first and final account and ordering final distribution; also to require the executors to file a full and complete account of their administration of the estate, and to file adequate bond as executors. This motion was not made at the time stated in the notice or thereafter, and was allowed to lapse.

2. On May 5, 1932 an affidavit by the attorney for the executors was filed, wherein it was alleged that he had prepared the final account and petition for distribution of the estate, and in the preparation thereof he had inadvertently omitted therefrom the claims of Alfred J. Fankhauser for $20,000, and of Clara Baldizzone for $10,000, which claims had been allowed and paid in due course of administration; that the error in omitting said claims was not discovered until after the court had made its decree of distribution. The affidavit stated also that “this affidavit is made in support of a motion to set aside the Decree of Distribution heretofore made and entered, and to make an amendment to said Final Account showing the allowance of the two claims herein referred to and for the purpose of giving the executors credit in their Final Account for the payment of such claims.”

3. On the same day on which this affidavit on behalf of the executors was filed, there was made in open court, and filed, the order above set forth, purporting to set aside the decree of distribution and allowing the filing of an amended decree of distribution.

In the case of Benning v. Superior Court, 34 Cal. App. 296, 167 P. 291, 292, a writ of mandate was sought to compel the superior court to set aside an order settling the final account and decree of distribution in the estate of Manuel S. Nevis, deceased. The writ was sought by an assignee of a creditor of the estate, who had been paid only a portion of an allowed claim. The final account and petition for distribution alleged payment of all allowed claims, although at the time a portion of petitioner's claim still remained unpaid. After due notice and hearing, an order was made by the court settling the account and finding that all debts of the estate had been paid, and a decree of distribution was made and entered. Subsequently, a petition was filed in the said superior court for an order setting aside the decree of distribution. A demurrer to the petition interposed by the distributees of the estate was sustained by the court, and the petition was denied upon the ground that the order settling the final account and the decree of distribution had become final and conclusive against the petitioner. The District Court of Appeal said: “The sole question for consideration is, therefore, whether the petitioner here is entitled to an order of the said superior court setting aside the order settling the final account and the decree of distribution theretofore made. * * *” In denying the writ, it was there held by the District Court of Appeal that an order settling final account and decreeing distribution of the estate is placed upon the same footing as an ordinary judgment in a civil action, and the court said: “It cannot be doubted that a judgment can be nullified by the court which rendered it only: First, on motion for a new trial; second, by a motion under the provisions of section 473 of the Code of Civil Procedure, where the judgment is inadvertently made, and where application is made to set it aside within six months; third, by motion therefor at any time where the judgment is void on its face; fourth, by an independent suit in equity. * * *”

In the case at bar, no motion for a new trial was or could be made. The judgment is not void on its face, nor is this an independent suit in equity to set aside the judgment. Unless the motion made here comes within the terms of section 473 of the Code of Civil Procedure, respondents have not brought themselves within any of the recognized methods of procedure whereby said judgment of the court could be legally avoided or nullified. The judgment set aside herein recites “that all claims against the estate have been fully paid and discharged.” The respondents say that this was not a true finding of the facts. However, it was a question which the court was called upon to decide, and, if the court erred in its decision, it could be corrected by that court only by motion under section 473 of the Code of Civil Procedure.

In United Railroads v. Superior Court, 170 Cal. 755, 760, 151 P. 129, 132, Ann. Cas. 1916E, 199, it is said: “Nothing is more firmly settled in this state than the doctrine that the superior court may not revoke, modify, or otherwise disturb its judgments and orders regularly made in pursuance of plain statutory provision, where the statute prescribes the method by which such judgments and orders may be reviewed, except as authorized by statute.” To the same effect is In re Estate of Hunter, 99 Cal. App. 191, 278 P. 485.

In Holtum v. Greif, 144 Cal. 521, 78 P. 11, the court quotes approvingly the language of Benning v. Superior Court, supra, restricting the methods by which a judgment may be nullified. That a decree of distribution is in the nature of a judgment is also held in Re Estate of Parsell, 190 Cal. 454, 213 P. 40, 25 A. L. R. 1561. That the court may set aside a decree of distribution under section 473 of the Code of Civil Procedure was assumed in Re Estate of Hudson, 63 Cal. 454. In De Pedrorena v. Superior Court, 80 Cal. 144, 22 P. 71, it was expressly held that a court, at any time within six months, can set aside a decree of distribution on motion upon proper showing. In Re Estate of Hickey, 129 Cal. 14, 61 P. 475, an order settling final account and a decree of distribution was vacated under section 473.

The question then arises whether in this case the order setting aside the decree of distribution was one which was made pursuant to section 473, Code of Civil Procedure. Unless it falls within that section, the court was without jurisdiction to nullify its judgment theretofore entered, and such jurisdiction could not be conferred by consent. In Smith v. Westerfield, 88 Cal. 374, 378, 26 P. 206, 207, it is said: “The superior court, while sitting as a court of probate, has only such powers as are given it by statute, and such incidental powers as pertain to all courts for the purpose of enabling them to exercise the jurisdiction which is conferred upon them. Although it is a court of general jurisdiction, yet in the exercise of these powers its jurisdiction is limited and special; and whenever its acts are shown to have been in excess of the power conferred upon it, or without the limits of this special jurisdiction, such acts are nugatory, and have no binding effect, even upon those who have invoked its authority, or submitted to its decision.”

It appears that the motion of appellants to vacate the order settling the original account and the decree of distribution was never prosecuted or acted upon by the court, and was allowed to lapse. Colthurst v. Harris, 97 Cal. App. 430, 275 P. 868. No authority was therefore by it conferred on the court to vacate the judgment theretofore entered.

The action taken by respondents in obtaining the order setting aside the judgment was entirely ex parte. No notice was given to the appellants, nor does it appear that they were present, and no hearing of any kind was had, except such as may be inferred from a presentation to the court of the affidavit, with a request for the order vacating the judgment. The affidavit and order were filed on the same day. Section 473 of the Code of Civil Procedure permits the court to allow an amendment to any pleading or proceeding after notice to the adverse party. In the early case of Vallejo v. Green, 16 Cal. 160, the Supreme Court, solely for the reason that it did not affirmatively appear that a copy of the order fixing time was served on the adverse party or that he had notice of the time when the motion would be heard, reversed the order vacating the judgment. The same order was made in Reilly v. Ruddock, 41 Cal. 312. The court there gave as one of the reasons why the default of the defendants for a failure to answer was improperly set aside: “Because there was no service of the moving papers, and the application was heard and decided in the absence of the plaintiff's attorney, who had no notice of the motion. This was error.” In Brownell v. Superior Court, 157 Cal. 703, 709, 109 P. 91, it is held that the relief specified in section 473 may not be given until after notice to the adverse party. In Gill v. Peppin, 41 Cal. App. 487, 182 P. 815, 817, it is said: “While the court within the six months upon mere motion may vacate the judgment, the injustice of setting aside a judgment * * * without notice is not sanctioned by the Code.” Equally pertinent is the language of the court in Dolan v. Superior Court, 47 Cal. App. 235, 239, 190 P. 469, 471, where it is said: “After a court has acted judicially it may not seek to correct its own errors by changing its judgments and orders without notice to the parties affected. Such action would very shortly deprive all judgments of their character of finality.” To the same effect is Vale v. Maryland Casualty Co., 101 Cal. App. 599, 281 P. 1058.

The judgment of the lower court in settling the final account and ordering distribution was final, to be nullified only in the manner provided by law. This was not done. The subsequent order vacating the first order was in the language of the court in Vale v. Maryland Casualty Co., supra, functus officio. The case stands as though the original order had not been disturbed. Scamman v. Bonslett, 118 Cal. 93, 50 P. 272, 62 Am. St. Rep. 226. And this act of the court is one that goes to its jurisdiction. Lang v. Superior Court, 71 Cal. 491, 12 P. 306, 416; Carpenter v. Superior Court, 75 Cal. 596, 19 P. 174; State ex rel. McHatton v. District Court, 55 Mont. 324, 176 P. 608.

The orders and decree appealed from are reversed.

HELD, Justice pro tem.

We concur: TYLER, P. J.; CASHIN, J.