Estate of Mohr

SULLIVAN, J.

Appellant Margaret Sparks has appealed upon a partial clerk’s transcript from an order of the probate court denying her motion to set aside a decree of settlement of final account and of final distribution.

Appellant is the daughter and respondent Eleanor A. Mohr is the widow, executrix and sole legatee and devisee of the last will of Arnold 0. Mohr, which was admitted to probate in the court below. The will, a holograph, made no provision for, or mention of appellant, in any way. It is conceded that appellant had notice of the will and of the filing of the petition for its probate. However, during the subsequent administration of the estate, appellant initiated no proceedings pursuant to section 1080 of the Probate Code to assert any claim that she was a preterznitted heir of the decedent or entitled to

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distribution of any part of his estate. On March 30, 1961, the court below entered its decree of final distribution under which all of the estate in the hands of the executrix and all after-discovered property was distributed to the respondent widow according to the terms of the will. The estate in the hands of the executrix consisted of three items of property, specifically described in the decree, which was all of the property described in the inventory. No appeal was taken from the above decree of distribution.

On September 15, 1961, almost six months after the entry of the above decree, and after it had become final, appellant filed a notice of motion to vacate it and set it aside “on the grounds that the inventory . . . filed in the within entitled matter did not include all of the decedent’s assets.” The notice recited that the motion would be based on the declaration of appellant filed therewith and on the records and files of the action. Appellant’s declaration was generally to the effect that at the time of his death, her father owned certain personal property which had not been inventoried. Appellant’s present counsel also filed a declaration stating that on June 13, 1961, he had written to respondent’s counsel advising the latter that, according to information received from appellant, the executrix had not inventoried all of the decedent’s assets and inquiring whether respondent’s counsel would be willling to stipulate that the decree of distribution be set aside and an amended inventory filed. The declaration generally described the communications between counsel on the subject and the unsuccessful efforts of appellant’s counsel to achieve the desired objective. The respondent Eleanor A. Mohr also filed a declaration in opposition to the motion, which we deem unnecessary to set forth in detail. In it respondent described the various articles of property claimed to have been omitted from the inventory and took the position that none of them were properly includable therein. A hearing was apparently had on the motion on October 4, 1961. The record before us contains no transcript of such proceedings. Thereafter, counsel presented certain arguments and authorities in letter form. On November 20, 1961, appellant’s motion was denied, the court stating no reason for such action.