Estate of Neilson

SCHOTTKY, J.

Hazel DeBoer, individually, Wade Coffill, as trustee for Ed Neilson and as executor of the estate of Charles Christian Neilson, and Ed Neilson seek a writ of supersedeas to restrain Dan Kelsay, the Sheriff of Stanislaus County, from paying funds which he obtained as the result of a levy on the executor of the estate of Charles Christian Neilson to Ines Neilson.

Charles Christian Neilson died May 12, 1958. By the terms of his will he left his entire estate to his daughter, Hazel DeBoer, and Wade Coffill, as trustee for his son Ed Neilson. The testator did not provide for his wife, Ines Neilson, by his will. The will was admitted to probate and Wade Coffill was

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issued letters testamentary. Thereafter the executor filed a petition to determine heirship. Ines Neilson then filed a statement of interest in which she claimed that the assets of the estate were community property. Wade Coffill, as trustee for Ed Neilson, and Hazel DeBoer each filed a statement of interest in which each asserted that the assets of the estate were the separate property of the decedent. A hearing was had on the matter and at its conclusion the matter was submitted to a jury which rendered a special verdict that all of the real property and substantially all of the personal property in the estate was the community property of Ines Neilson and the decedent. On October 13, 1959, the clerk of the court entered judgment in accordance with the verdict of the jury. The judgment also included the following provision:

“And in the discretion of the Court, It Is Further Ordered, Adjudged and Decreed that each of the three claimants in this matter, . . ., each have and recover their own separate necessary costs and disbursements in this proceeding, of, from and out of the Estate of said Charles Christian Neil-son and Wade H. Coffill, as Executor thereof, the said necessary costs and disbursements of each of said claimants to be fixed and determined by separate Memoranda of Costs and Disbursements, ....’’

On October 13, 1959, Ines Neilson filed a memorandum of costs in the amount of $1,661.40. Thereafter a motion for a new trial and for a judgment notwithstanding the verdict which had been previously made by the claimants, Hazel DeBoer, Wade Coffill and Ed Neilson, was denied. On the same day, December 4, 1959, each of the said claimants filed their notice of appeal from the judgment and from the order denying their motion for judgment notwithstanding the verdict. On December 17, 1959, Ines Neilson caused a writ of execution to be issued by the clerk of the court and the sheriff levied upon funds in the possession of Wade Coffill, as executor, to satisfy the writ of execution. Thereafter the court issued an order temporarily restraining the sheriff from paying the funds to Ines Neilson. On January 7, 1960, Wade Coffill, as executor, asked the court to recall the writ of execution and restore to him the funds levied upon. This motion has not been decided, but according to this petition the court has indicated that unless this court issues its writ of supersedeas it will deny the motion. This petition followed.