Buckmaster v. Silva

ADAMS, P. J.—

Manuel Silva died intestate on July 4, 1942, leaving surviving him his widow, Mercedes Silva, and four children. On September 22, 1941, he had executed a gift deed conveying to Mercedes Silva 249.28 acres of farm land in San Joaquin County, which deed was recorded October 28, 1941. At the time of his death his sole assets consisted of an undivided one-half interest in about one acre of land with a small house thereon, which was subject to a homestead declared and recorded by Mercedes Silva on or about June 27, 1941.

[336]

On June 3, 1940, a judgment had been entered against Silva and others in favor of George G. Prytz in the total sum of $3,624.83; and on April 15, 1942 a judgment had been entered against Silva in favor of Indemnity Insurance Company of North America, a corporation, in the total sum of $2,639.18. By the conveyance of the 249.28-acre farm to his wife, Silva had rendered himself insolvent, and neither of the foregoing judgments was ever satisfied.

As, after Silva’s death, none of his heirs sought letters of administration of his estate, on or about November 13, 1946, the creditors above mentioned procured the appointment of Margaret Buckmaster as administratrix, and filed with her their two claims, which were duly allowed by her and approved by the court. On or about December 18, 1946, the administratrix began this action to set aside the deed executed by Silva to his wife, on the ground that said deed was fraudulent and void as against existing creditors.

On April 5, 1947, Conrad Silva, a son of decedent, filed a petition to revoke the letters granted to Margaret Buck-master, and applied for letters in his own behalf. His petition and application were granted and he qualified as administrator on April 22, 1947. However, on August 25, 1948, Margaret Buckmaster was appointed special administratrix, in which capacity she now appears in this action.

On or about April 11, 1947, Mercedes Silva filed in the probate court a notice of motion to vacate the allowance of the claims of Prytz and the Indemnity Insurance Company, and to secure the rejection of such claims. The motion was duly heard and denied. She thereafter filed in this court a petition for a writ of review, praying that the aforesaid order of the trial court be annulled on the grounds that Prytz’s judgment was barred by the provisions of section 336 of the Code of Civil Procedure; that the court which rendered the judgment of the Indemnity Insurance Company was without jurisdiction because same had been entered without notice to defendant Silva and without his appearance, when he had a valid defense to said action; and that the creditors’ claims were approved by the administratrix without disclosing that she had been nominated by said creditors, and contrary to section 703 of the Probate Code. Also that the court’s allowance and approval of said claims was made ex parte and without notice to the heirs at law, all of whom disputed the claims.