In re the Estate of Wittmeier

California Supreme Court

In re the Estate of Wittmeier

50 P. 393, 118 Cal. 255, 1897 Cal. LEXIS 754

CourtCalifornia Supreme Court

DecidedSeptember 13, 1897

DocketS. F. No. 893

StatusPublished

Cited by18 cases

This text of 50 P. 393 (In re the Estate of Wittmeier) 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.

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In re the Estate of Wittmeier, 50 P. 393, 118 Cal. 255, 1897 Cal. LEXIS 754 (Cal. 1897).

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HENSHAW, J.

Magdalena Wittmeier, executrix, filed her final account in the matter of the estate of J. G-. Wittmeier, and also petitioned for distribution. Her account was settled and distribution decreed. G-. A. Wittmeier was a legatee under the will, and had assigned his legacy, amounting to one thousand dollars, to John C. Hughes. By the decree this legacy was ordered distributed and paid to Hughes.

The executrix, failing and refusing to pay over the money, was cited to show cause. After hearing she was found to be contumacious, adjudged guilty of contempt, and was ordered committed to jail until she complied with the terms of the decree of distribution. From the order adjudging her in contempt she has taken an appeal. This is a motion to dismiss that appeal.

[256]*256It is well established that obedience by executor or administrator to a decree of distribution may be enforced by contempt proceedings. (Ex parte Smith, 53 Cal. 204; Ex parte Cohn, 55 Cal. 193; Sayers v. Superior Court, 84 Cal. 642; In re Clary, 112 Cal. 292.)

Appeals in probate proceedings lie only from such orders and decrees as are enumerated in section 963, subdivision 3, of the Code of Civil Procedure. (Estate of Calahan, 60 Cal. 232; Estate of Lutz, 67 Cal. 457; Estate of Wiard, 83 Cal. 619.) The provisions of subdivision 2 of section 963, relative to appeals from orders made after final judgment, are not applicable to probate proceedings. (Estate of Calahan, supra; Estate of Walkerly, 94 Cal. 352; Estate of Smith, 98 Cal. 636; Iverson v. Superior Court, 115 Cal. 27.)

Appellant contends, however, that aside from these considerations she has an appeal as of right, and cites the case of People v. O’Neil, 47 Cal. 109. In that case it was so held; but People v. O’Neil, supra, has been twice overruled (Tyler v. Connolly, 65 Cal. 28; In re Vance, 88 Cal. 262); and it may be taken as finally settled that appeals will not lie to this court from judgments in contempt such as this. (Sanchez v. Newman, 70 Cal. 210; Ex parte Clancy, 90 Cal. 553; Cosby v. Superior Court, 110 Cal. 45.)

Whether or not an appeal will lie from an order made after final judgment declaring a person in contempt, when the object of the order of contempt is to enforce a compliance with the final judgment, is a question now under consideration by this court.

The motion is granted and the appeal dismissed.

Temple, J., Harrison, J., McFarland, J., and Yan Fleet, J., concurred.

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HENSHAW, J.

Magdalena Wittmeier, executrix, filed her final account in the matter of the estate of J. G-. Wittmeier, and also petitioned for distribution. Her account was settled and distribution decreed. G-. A. Wittmeier was a legatee under the will, and had assigned his legacy, amounting to one thousand dollars, to John C. Hughes. By the decree this legacy was ordered distributed and paid to Hughes.

The executrix, failing and refusing to pay over the money, was cited to show cause. After hearing she was found to be contumacious, adjudged guilty of contempt, and was ordered committed to jail until she complied with the terms of the decree of distribution. From the order adjudging her in contempt she has taken an appeal. This is a motion to dismiss that appeal.

[256]*256It is well established that obedience by executor or administrator to a decree of distribution may be enforced by contempt proceedings. (Ex parte Smith, 53 Cal. 204; Ex parte Cohn, 55 Cal. 193; Sayers v. Superior Court, 84 Cal. 642; In re Clary, 112 Cal. 292.)

Appeals in probate proceedings lie only from such orders and decrees as are enumerated in section 963, subdivision 3, of the Code of Civil Procedure. (Estate of Calahan, 60 Cal. 232; Estate of Lutz, 67 Cal. 457; Estate of Wiard, 83 Cal. 619.) The provisions of subdivision 2 of section 963, relative to appeals from orders made after final judgment, are not applicable to probate proceedings. (Estate of Calahan, supra; Estate of Walkerly, 94 Cal. 352; Estate of Smith, 98 Cal. 636; Iverson v. Superior Court, 115 Cal. 27.)

Appellant contends, however, that aside from these considerations she has an appeal as of right, and cites the case of People v. O’Neil, 47 Cal. 109. In that case it was so held; but People v. O’Neil, supra, has been twice overruled (Tyler v. Connolly, 65 Cal. 28; In re Vance, 88 Cal. 262); and it may be taken as finally settled that appeals will not lie to this court from judgments in contempt such as this. (Sanchez v. Newman, 70 Cal. 210; Ex parte Clancy, 90 Cal. 553; Cosby v. Superior Court, 110 Cal. 45.)

Whether or not an appeal will lie from an order made after final judgment declaring a person in contempt, when the object of the order of contempt is to enforce a compliance with the final judgment, is a question now under consideration by this court.

The motion is granted and the appeal dismissed.

Temple, J., Harrison, J., McFarland, J., and Yan Fleet, J., concurred.

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50 P. 393, 118 Cal. 255, 1897 Cal. LEXIS 754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-wittmeier-cal-1897.

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