McCarthy v. Mitchell

BARNARD, P. J.

This is an action to recover four parcels of real property which had been sold to certain of the defendants in a probate proceeding and to quiet title thereto in the plaintiff. From an adverse judgment the plaintiff has appealed. The appellant is the sole devisee and legatee under the will of W. 0. Mitchell. He died in San Diego on January 23, 1927, leaving as a part of his estate the real property in question. On February 11, 1927, the public administrator was appointed as administrator of his estate. In the process

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o£ such administration he sold these parcels of real property to various of these defendants, the sales being made on November 23, 1927, November 25, 1927, March 2, 1928, and on September 14, 1928, respectively.

In the meantime, the appellant petitioned for the probate of a lost will of the deceased, which was denied on June 5, 1928. The last will of the deceased was not found until January 10, 1929. A petition for its probate was filed on January 12, 1929, and denied on September 5, 1929, on the ground it should have been filed in the original ease. On December 31, 1929, appellant filed another petition for the probate of this will which was denied on January 22,1930. That order was reversed on appeal on July 16, 1931.

(Estate of Mitchell,

115 Cal. App. 348 [1 P. (2d) 536].) The will was finally admitted to probate on September 25, 1931, and this appellant was appointed administratrix with the will annexed. However, the public administrator having filed his final account and petition therefor, distribution had been ordered to an alleged brother of the deceased on May 10, 1929, at which time the first petition for the probate of the will was still pending. Apparently, no appeal was taken from that decree of distribution. The administrator was discharged on January 24, 1930.

The present action to set aside these probate sales was not filed until September 15, 1941. The above facts are alleged in the complaint and it is further alleged that at the time the probate sales were made the respective purchasers knew that the deceased “had executed the aforesaid will to and in favor of plaintiff and that plaintiff was seeking said will and intended to have it presented for probate.” A demurrer was filed to the second amended complaint setting up, among other things, that it does not state facts sufficient to constitute a cause of action and that it appears on the face of the complaint that the action is barred by the provisions of section 793 of the Probate Code, and by laches. The demurrer was sustained without leave to amend and this appeal followed.