Toby v. Superior Court

YORK, J.

The petitioners, who are the children by a former marriage of the predeceased spouse of decedent Levi H.

[33]

Blouch, by their verified petition seek to determine by writ of review the legality (1) of an order of respondent court vacating an order settling final account, and (2) of an order setting aside a decree of distribution in the matter of estate of Levi H. Blouch, deceased.

It appears from the record before us that the estate of decedent Levi H. Blouch consisted of cash, being proceeds from a life insurance policy, and that by the provisions of the last will of said decedent, the whole estate was devised to C. Belle Blouch, his wife, who had predeceased him, dying intestate. It also appears that decedent Levi H. Blouch left no children surviving him, but that his predeceased wife left surviving her G. Harry Brown, Claude L. Brown, Marjorie R. Betts and Ina B. Toby, sons and daughters, and that said estate having been the community property of deceased and his predeceased spouse, it was distributed in equal shares to the sons and daughters of C. Belle Blouch, the predeceased spouse, pursuant to provisions of section 228 of the Probate Code. Decree of distribution was entered on November 21, 1934.

Under date of January 11, 1935, Frank Blouch and Mervil Blouch McLees, brothers of deceased Levi H. Blouch, moved under section 473 of the Code of Civil Procedure, to set aside the order settling final account and decree of distribution and the order allowing extraordinary attorney fees, alleging in their motion that they were nonresidents of the state of California and had “received no notice of the commencement of proceedings in said estate”. Accompanying the motion is a document entitled “Objections to Petition for settlement of final account and for distribution and for allowance of extraordinary attorney fees”.

The motion came on for hearing before Clemmence Brown, purportedly acting as a judge

pro tempore,

under date of January 17, 1935, whereupon the following order was made by her:

“Upon motion herein of Frank Blouch and Mervil B. McLees to vacate order of Nov. 21, 1934, settling final account and decree of distribution and order allowing extraordinary attorney fees in the above entitled matter, coming on the 17th day of January, 1935, for hearing by the Court, notice thereof having been given, and on the proof adduced and good cause