Estate of Smith

California Court of Appeal Dec 4, 1959 No. Civ. No. 18534Published

Before: Foley

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Holding. The court held that an order denying a motion to vacate a prior order and an order denying a motion for a new trial in a probate proceeding are not appealable, and that a notice of appeal specifically referencing only those non-appealable orders cannot be construed as an appeal from the underlying order appointing an administrator.

Issues

Whether an order denying a motion to vacate a prior order in a probate proceeding is appealable.
Whether an order denying a motion for a new trial in a probate proceeding is appealable.
Whether a notice of appeal specifically identifying non-appealable orders can be liberally construed to include an appeal from an underlying appealable order.

Disposition. dismissed

Quotations verified verbatim against the opinion

“An order denying a motion to vacate a former order made in a probate proceeding is not an appealable order.”

“Also an order denying a motion for a new trial in a probate proceeding is not an appealable order.”

“The document which purported to take an appeal from the order denying the motion to vacate and the motion for a new trial was so specific in its reference to that order that it cannot be given any effect as an appeal from the order appointing an administrator.”

175 Cal.App.2d 803 (1959) Estate of ALICE M. SMITH, Deceased. HARRY H. CARPENTER, Appellant,

CHARLES H. JOHNSON, as Administrator with Will Annexed, etc., Respondent.

Civ. No. 18534. California Court of Appeals. First Dist., Div. One.

Dec. 4, 1959. C. Jay Hollander and Edward R. Fitzsimmons for Appellant.

Emmet L. Rittenhouse for Respondent.

FOLEY, J. pro tem. [fn. *]

Alice M. Smith died in Watsonville, Santa Cruz County, California, on June 12, 1958. She left a will and codicil thereto. The will appointed Margaret G. Cobb executrix to serve without bond. Margaret Cobb, in writing, renounced her rights to letters testamentary and requested the court to appoint Charles H. Johnson, Public Administrator, as the administrator of the estate.

On June 25, 1958, Charles H. Johnson, respondent herein, filed his petition for probate of the will and codicil and for letters of administration with the will annexed. On June 30, 1958, Harry H. Carpenter, appellant herein and a nephew of the decedent, filed his petition for letters of administration with the will annexed. Hearings on both petitions were set for July 11, 1958, at which time the court admitted the will and codicil to probate and ordered the issuance of letters of administration with the will and codicil annexed to Charles H. Johnson, Public Administrator of the County of Santa Cruz.

On July 21, 1958, appellant Carpenter filed a notice of motion to vacate the order of July 11, 1958, appointing respondent Johnson administrator with the will annexed and for a new trial. The motions came on for hearing on September 5, 1958, and both motions were denied.

At the oral argument before this court a question arose as to the scope of the notice of appeal in this matter. Both parties were granted additional time to brief this question. This has been done and the cause stands submitted.

The first question which we are called upon to decide is whether or not an appeal has been taken herein from any appealable order.

The notice of appeal reads as follows: "To the Clerk of the Above Entitled Court: You will please take notice that [805]

Estate of Smith

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