In re the Estate of Wiard

California Supreme Court

In re the Estate of Wiard

24 P. 45, 83 Cal. 619, 1890 Cal. LEXIS 738

CourtCalifornia Supreme Court

DecidedApril 30, 1890

DocketNo. 13093

StatusPublished

Cited by31 cases

This text of 24 P. 45 (In re the Estate of Wiard) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Wiard, 24 P. 45, 83 Cal. 619, 1890 Cal. LEXIS 738 (Cal. 1890).

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Opinion

Fox, J.

Appeal from a decree of final distribution, and from an order subsequently made denying an application or motion to vacate and set aside said decree, and for a new trial.

The decree was rendered, filed, and entered March 12, 1888. An appeal from such a decree may be taken to the supreme court (Code Civ. Proc., sec. 963, subd. 3), and the general provisions of part 2 (of which said section is a part), relative to appeals, are applicable, except so far as they are inconsistent with the provisions of title 11, part 3,, Code Civ. Proc., sec. 1714. Appeals from orders and decrees in probate proceedings are governed by chapter 12, title 11, of part 3. Section 1715, found in that chapter, provides that the appeal must be taken within sixty days after the order, decree, or judgment is entered. This appeal was not taken until December 22, 1888. The appeal from the decree must therefore be dismissed.

[620]*620Subdivision 3 of section 963, Code of Civil Procedure, enumerates all the cases in which an appeal may be taken to this court from the superior court in probate proeedings, and an order refusing to vacate a decree of distribution and settlement of final account is not one of them. (Estate of Calahan, 60 Cal. 232; Estate of Lutz, 67 Cal. 457. See also Blum v. Brownstone, 50 Cal. 293; Estate of Dean, 62 Cal. 613.)

Counsel has not made the point that the order refusing to vacate the decree is not appealable, but we cannot ignore the plain provisions of the statute, particularly after attention has been frequently called to them, because counsel has overlooked the point. The policy of the law is-to facilitate, and not to delay, the settlement of the estates of deceased persons. The law gives a direct appeal from the decree, if taken in time, hut it gives no appeal from an order of the conrt helow refusing to vacate that decree, which is made only after several months of delay.

Appeal dismissed.

Sharpstein, J., McFarland, J., Paterson, J., and Thornton, J., concurred.

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Fox, J.

Appeal from a decree of final distribution, and from an order subsequently made denying an application or motion to vacate and set aside said decree, and for a new trial.

The decree was rendered, filed, and entered March 12, 1888. An appeal from such a decree may be taken to the supreme court (Code Civ. Proc., sec. 963, subd. 3), and the general provisions of part 2 (of which said section is a part), relative to appeals, are applicable, except so far as they are inconsistent with the provisions of title 11, part 3,, Code Civ. Proc., sec. 1714. Appeals from orders and decrees in probate proceedings are governed by chapter 12, title 11, of part 3. Section 1715, found in that chapter, provides that the appeal must be taken within sixty days after the order, decree, or judgment is entered. This appeal was not taken until December 22, 1888. The appeal from the decree must therefore be dismissed.

[620]*620Subdivision 3 of section 963, Code of Civil Procedure, enumerates all the cases in which an appeal may be taken to this court from the superior court in probate proeedings, and an order refusing to vacate a decree of distribution and settlement of final account is not one of them. (Estate of Calahan, 60 Cal. 232; Estate of Lutz, 67 Cal. 457. See also Blum v. Brownstone, 50 Cal. 293; Estate of Dean, 62 Cal. 613.)

Counsel has not made the point that the order refusing to vacate the decree is not appealable, but we cannot ignore the plain provisions of the statute, particularly after attention has been frequently called to them, because counsel has overlooked the point. The policy of the law is-to facilitate, and not to delay, the settlement of the estates of deceased persons. The law gives a direct appeal from the decree, if taken in time, hut it gives no appeal from an order of the conrt helow refusing to vacate that decree, which is made only after several months of delay.

Appeal dismissed.

Sharpstein, J., McFarland, J., Paterson, J., and Thornton, J., concurred.

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24 P. 45, 83 Cal. 619, 1890 Cal. LEXIS 738, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-wiard-cal-1890.

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