McPherson v. Missamore

DOOLING, J. assigned.

Respondent moves to dismiss the appeal on the ground that the order appealed from is not an appealable order.

In the within estate of Marion McPherson, deceased, the decedent’s mother, respondent herein, executed a document whereby she waived all rights of inheritance in said estate and requested the probate court to distribute her share of the estate to one of her daughters, appellant herein. Thereafter the respondent mother noticed a motion to set aside said waiver of right of inheritance and request for distribution and for an order directing that all of said estate be distributed to the movant as sole heir at law of the decedent. Pursuant to this notice a trial was held and the court made its findings of fact and conclusions of law and entered its order vacating and setting aside the written waiver of right of inheritance and decreeing “that distribution of the entire estate herein be made to Elizabeth McPherson, as next of kin and sole heir at law of said decedent. ”

Insofar as the order determines that respondent is entitled to distribution of the entire estate as sole heir respondent argues that it is not appealable since the proceedings leading to the order were not taken pursuant to sections 1080-1082, Probate Code. Respondent cites in support of this position

Estate of Wilson,

199 Cal. 199 [248 P. 666], In that case the court held that an order determining heirship or the right to distribution not made pursuant to the provisions of section 1664, Code of Civil Procedure, was not an appealable order, but that such determination could be reviewed on an appeal from the decree of distribution. An examination of the statutory provisions as they then read makes the reason for this ruling obvious. The probate provisions were all then contained in the Code of Civil Procedure and the general section with regard to probate appeals (§ 963, subd. 3) made no provision for an appeal from an order determining heirship or the right to distribution. Included in section 1664, Code of Civil Procedure itself, however, was a provision giving the

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right of appeal from orders made pursuant to that section. Thus by the very terms of the code as it then read appeals from orders determining heirship and the right to distribution were limited to orders made pursuant to section 1664.