IN RE: HOWE'S ESTATE.

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District Court of Appeal, Second District, Division 3, California.

IN RE: HOWE'S ESTATE. METZ v. HOWE et al.

Civ. 15617.

Decided: July 18, 1947

Hugh Gordon, of Los Angeles, Sanford A. Waugh, of San Francisco, and Powers & Bernard and W. A. Strong, all of Los Angeles, for appellant. Charles E. Beardsley, of Los Angeles, for respondent John C. Netz.

This is an appeal by Myra B. Howe, widow of George E. Howe, deceased, from an order of the superior court sitting in probate instructing and directing John C. Netz, the executor of Howe's will, to exclude from said decedent's estate all of the assets of the hardware, plumbing, and heating business owned and operated by decedent at the time of his death. The order declares the assets of this business to be the individual property of Netz by virtue of an agreement he made with Howe in 1928 to serve as manager of the business. The order is appealable. Probate Code, sec. 1240.

The sole question raised and argued by the parties on this appeal is whether this employment agreement is void as an invalid testamentary disposition. The presentation evidences much research and care in the preparation of the briefs and the question is one of importance. We have concluded with some reluctance that it is not properly before us, and we therefore shall not decide it. The initial duty of the court, in any case before it, is to inquire into its own jurisdiction. If a reviewing court determines in the course of this inquiry that the trial court was without jurisdiction, the judgment of such court should be reversed upon that ground, notwithstanding the fact that the parties have not challenged the jurisdiction of either court. Smith v. Westerfield, 88 Cal. 374, 380, 381, 26 P. 206; United States v. Corrick, 298 U.S. 435, 440, 56 S.Ct. 829, 80 L.Ed. 1263; Clark v. Paul Gray, Inc., 306 U.S. 583, 586, 59 S.Ct. 744, 83 L.Ed. 1001; Board of Assessors v. Suffolk Law School, 295 Mass. 489, 4 N.E.2d 342, 346. Stated otherwise, in such a situation the appellate jurisdiction should be exercised only to correct this fundamental error. United States v. Corrick, supra; 4 C.J.S., Appeal and Error, § 45, pages 127–129. Inasmuch as we have determined that the order was in excess of the jurisdiction of the trial court, it is our duty to reverse it on our own motion, just as we should dismiss an attempted appeal from a nonappealable order. Rosenberg v. Knesboro, 80 Cal.App.2d 36, 180 P.2d 750; Collins v. Corse, 8 Cal.2d 123, 64 P.2d 137. The merits of the appeal should not be considered. It is fundamental that a reviewing court should not act to give effect to or enforce an order or judgment of a trial court made in excess of its jurisdiction.

The jurisdiction of the superior court sitting in probate is purely statutory. Consequently it may competently proceed only in the manner provided by statute. Texas Co. v. Bank of America, 5 Cal.2d 35, 39, 53 P.2d 127. Its jurisdiction is entirely circumscribed by statute. Estate of Lund, 65 Cal.App.2d 151, 155, 150 P.2d 211. Parties to its proceedings cannot enlarge its statutory jurisdiction by any conduct on their part. See Harrington v. Superior Court, 194 Cal. 185, 188, 228 P. 15; Standard Oil Co. v. State Board of Equalization, 6 Cal.2d 557, 559, 59 P.2d 119; Marin Municipal Water District v. North Coast Water Co., 178 Cal. 324, 328, 173 P. 473.

This case came before the trial court on Netz' petition for instructions. The only authorization for such procedure is found in section 588 of the Probate Code. This section expressly provides, however, that its procedure is to be used only ‘where no other or no different procedure is provided by statute.’ The jurisdictional question is thus presented whether or not there existed other or different procedure provided by statute which Netz might have used. This question may be answered only in the affirmative in view of the issue raised by Netz' petition. Netz sought by this petition for instructions to try title to the decedent's business as between himself, the executor, and the estate. The trial of title to property between the executor and the estate normally is had in the hearing upon settlement of the executor's final account. Waterland v. Superior Court, 15 Cal.2d 34, 39, 98 P.2d 211; Bauer v. Bauer, 201 Cal. 267, 271, 256 P. 820; Stevens v. Superior Court, 155 Cal. 148, 150–151, 99 P. 512; Estate of Basso, 68 Cal.App.2d 294, 299, 156 P.2d 476; Best v. Coloneus, 56 Cal.App.2d 285, 132 P.2d 260. By reason of the existence of this other and different procedure for the trial of title to property between the executor and the estate, the trial court was without power to try such an issue upon a petition for instructions. It was held in Estate of Thramm, 67 Cal.App.2d 657, 658–659, 155 P.2d 119, and Estate of Clippinger, 75 Cal.App.2d 426, ——, 171 P.2d 567, that section 588 does not provide alternative procedure and that issues as to how the estate is to be distributed, which are triable upon partial or final distribution, may not be determined on a petition of an executor or administrator under section 588. The scope of the section is limited by its express provisions.

Accordingly, since the trial court did not act in the manner prescribed by statute and since its jurisdiction in probate is entirely statutory, it exceeded its jurisdiction and its judgment and order instructing Netz is void. Parker v. Shell Oil Co., 55 Cal.App.2d 48, 53, 130 P.2d 158; Spreckels Sugar Co. v. Industrial Accident Commission, 186 Cal. 256, 260, 199 P. 8; see Rescue Army v. Municipal Court, 28 Cal.2d 460, 463–464, 171 P.2d 8; Abelleira v. District Court of Appeal, 17 Cal.2d 280, 287–291, 109 P.2d 942, 132 A.L.R. 715; Fortenbury v. Superior Court, 16 Cal.2d 405, 407–408, 106 P.2d 411; Rodman v. Superior Court, 13 Cal.2d 262, 269, 89 P.2d 109.

We realize that the executor was obliged to operate the business under his claim of ownership or on behalf of the estate, either under authority of the will or order of court, but this situation presented no serious problem. If he had sought or hereafter seeks authority to operate it as executor, this would not constitute a waiver of his claim of ownership. It is elementary that an intention to forego or abandon a right is an essential element of waiver.

The order is reversed.

SHINN, Acting Presiding Justice.

WOOD, J., and KINCAID, J. pro tem., concur.