Mazza v. Austin

California Court of Appeal Feb 16, 1938 No. Civ. 10696Published

Before: Nourse

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Holding. The probate court lacks jurisdiction to entertain a petition by a debtor to compel an executor to compromise a debt, as only the executor or administrator may petition for such authorization under the Probate Code. Furthermore, the court has no power to compel an executor to carry out a compromise.

Issues

Whether a debtor of an estate may petition the probate court for an order directing the executor to compromise a debt.
Whether the probate court has the power to compel an executor to perform a compromise of a claim.

Disposition. annulled

Quotations verified verbatim against the opinion

“the probate court has no power to direct or compel a compromise”

“we conclude that the probate court was without jurisdiction to entertain the debtors’ petition, and that the order authorizing and directing the executrix to compromise the claims was void.”

NOURSE, P. J.

Writ of review. Petitioner, as executrix of the estate of Mary Tunzi, seeks to annul an order of respondent court by which petitioner was “authorized and directed” to compromise certain claims of the estate against George Cerini, Mary Allison, D. R. Owen, and the estate of John Cerini, all debtors of the estate of Mary Tunzi.

From the return, it appears that on June 21, 1937, the above-named debtors of the estate of Mary Tunzi filed a petition in respondent court in which they recited that they owed certain sums of money to the estate of Mary Tunzi, that said sums cannot be paid in full and praying that petitioner as executrix of the estate of Mary Tunzi be authorized and directed to accept certain offers of compromise stated in the petition. On July 2, 1937, respondent court made its order by which petitioner was authorized and directed to compromise the claims, and by which Wm. B. Johnston was appointed as a commissioner of said court and directed to perform said order if the executrix failed to perform said order within ten days of service of a copy of the order upon her. The order was served the same day and petitioner has not performed said order. On the contrary, petitioner caused to be filed on October 13, 1937, a petition seeking an order setting aside the prior order of the court authorizing the compromise. Said petition was denied October 29, 1937.

No appeal was taken from either of these orders. Petitioner filed with the Supreme Court her petition for a writ of review on November 10, 1937. The alternative writ was issued on the same day and the cause transferred to this court for disposition.

Petitioner urges that no notice of the hearing of the petition to compromise was mailed to petitioner within two days after the filing of said petition as required by section 1200 of the Probate Code. In the order authorizing compromise, it is recited as follows: “It appearing that due notice of this hearing has been given as required by law

[87]

. . . ” There is nothing in the return to contradict said recital. The return does not contain any affidavit of mailing of the notice of hearing, but there is no requirement that proof of mailing be made by affidavit. In a similar ease,

Mazza v. Austin

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NOURSE, P. J.

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