Estate of Lund

[152]

SPENCE, J.

—Appellant Frank Lund, as an heir and a person entitled to take under the will of the deceased, filed an instrument entitled “Petition Pursuant to Section 1020.1 of the Probate Code.” He alleged therein that he was entitled to one-half of the estate of the deceased; that respondent Hanlon asserted a claim to one-third of the share of appellant which claim was denied by appellant; and he prayed that the probate court inquire into the claim of respondent and adjudge that respondent had no right, title or interest in the estate or in the’ share of appellant. Respondent answered by alleging that appellant had executed an agreement in writing whereby appellant had assigned to respondent a one-third interest in appellant’s share; and respondent prayed that said one-third interest be distributed to respondent. The probate court filed its findings of fact and conclusions of law and decreed that respondent was entitled to have distributed to him the sum of $1,000 out of appellant’s share of the estate. This amount was substantially less than one-third of appellant’s share but no appeal has been taken by respondent. Appellant has taken this appeal from said decree upon the judgment roll.

Section 1020.1 of the Probate Code, enacted as a new section in 1941, reads as follows:

“The court before making distribution of any property of a decedent to any assignee or transferee of any heir, devisee or legatee or before making distribution to any person other than an heir, devisee, or legatee pursuant to any agreement, request or instructions of any heir, devisee or legatee or of any attorney-in-fact of any heir, devisee or legatee may on the motion of any person interested in the estate or on the motion of the public administrator or on its own motion inquire into the consideration for such assignment, transfer, agreement, request or instructions and into the amount of any fees, charges, or consideration paid or agreed to be paid by the heir, devisee or legatee and into the circumstances surrounding the execution of such assignment, transfer, agreement, request or instructions and if it finds that the fees, charges or consideration paid by any such heir, devisee or legatee is grossly unreasonable or that any such assignment, transfer, agreement, request or instructions was obtained by duress,- fraud or undue influence it may refuse to make distribution pursuant thereto except upon such terms as it deems just and equitable. . . . ”