Estate of Dell

California Court of Appeal Nov 14, 1961 No. Civ. No. 24825Published

Before: Balthis

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Holding. A probate court order setting apart a homestead, which includes provisions for the sale and division of proceeds, is a final, binding judgment in rem that cannot be vacated years later even if the order was legally erroneous.

Issues

Whether a probate court order setting apart a homestead and dividing proceeds is valid and binding on all interests despite a lack of personal notice to legatees.
Whether a final probate homestead order can be set aside by motion years after it was entered.

Disposition. reversed

Quotations verified verbatim against the opinion

“The 1955 order setting apart the probate homestead became final and provisions thereof relating to sale and division of proceeds, and establishing the rights of the parties, could not be set aside by motion made more than four years later”

“An order setting apart a probate homestead cannot be set aside after it has become final.”

196 Cal.App.2d 809 (1961) Estate of ANN DELL, Deceased. HARRIETT DELL SIGOURNEY, Appellant,

T. W. WARD, as Executor, etc., et al., Respondents.

Civ. No. 24825. California Court of Appeals. Second Dist., Div. Four.

Nov. 14, 1961. Rinehart, Merriam, Parker & Berg and Jay D. Rinehart for Appellant.

Brown, Hamill, Wopschall & Whatley and Stanley K. Brown for Respondents.

BALTHIS, J.

In this probate proceeding the court, in 1955, made an order setting apart a probate homestead for the surviving husband, Harry C. Dell. In April 1960 the court, upon motion of the executor and legatees under the will of the decedent Ann Dell, made an order setting aside the principal portions of the 1955 order and the appeal is taken from this last order.

The decedent wife died July 15, 1954, survived by her husband. The husband filed a petition for an order setting apart a probate homestead as to specific property alleging [811] that the property was community. The executor filed objections to the petition claiming that the property was the separate property of decedent. At the hearing, attorneys for both the petitioning husband and the executor appeared and the statement was made to the court that a stipulation had been agreed upon; that an order should be made setting apart a homestead to the surviving husband for a period of five years; and that at the end of five years the property should be sold and the proceeds divided equally between the husband and the legatees named in decedent's will. The court then made its order pursuant to the stipulation which was entered in the minutes on May 26, 1955. No specific finding was made that the property was either community or separate. A formal order setting apart the homestead, with the same terms, was entered July 13, 1955.

On August 1, 1955, the same parties (the husband and the executor of the decedent's will), through their attorneys, entered into a written stipulation that in the division of the proceeds of the property when sold the husband would claim no credit for payments made on the encumbrances or taxes against, or for maintenance of, the property. This stipulation is not necessarily material in view of the finality of the order.

Estate of Dell

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BALTHIS, J.

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