Herrington v. Herrington

MARKS, J.

Albert B. Herrington died testate about the 5th day of August, 1945. He left surviving him, Blanche Herrington, his widow, and two children, the issue of a former marriage. His will nominated and appointed Paul Hornung as executor.

Mr. Hornung filed the will together with a petition for its probate. Blanche Herrington filed a contest to the probate of the will on various grounds. Citation was served on Paul Hornung as well as others. Hornung did not appear and answer the contest and his default was entered by the clerk. He filed his notice of motion (1) to vacate and annul the citation served on him, (2) to dismiss the contest of the will as to him, and (3) to vacate his default which had been entered. These motions were granted and Blanche Herring-

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ton appealed from the order. A motion to dismiss this appeal is pending.

The contest to the probate of the will went to trial and at the close of contestant’s case the court granted a motion for nonsuit. Contestant appealed from that order. This appeal was dismissed on consent of the parties on March 11, 1947.

The cause is now before us on the motion to dismiss the appeal first mentioned and on the merits of that appeal.

It seems to be the rule in California that as probate proceedings are strictly statutory “the only appealable orders in probate matters are those designated in subdivision 3 of section 963 of the Code of Civil Procedure”

(Estate of Edelman,

148 Cal. 233 [82 P. 962, 113 Am.St.Rep. 231]) which is now section 1240 of the Probate Code, with the exception of an order made on motion for new trial.

(Estate of Allen,

175 Cal. 356 [165 P. 1011];

Estate of Armstrong,

8 Cal.2d 204 [64 P.2d 1093] ;

Estate of O’Dea,

15 Cal.2d 637 [104 P.2d 368].) It is intimated that orders such as are now before us are intermediate orders that are reviewable on appeal from an order admitting the will to probate.