Estate of Grussing

TURRENTINE J.,

pro tem.

Thomas Grussing died testate. His will was duly admitted to probate, and Henry Grussing, the executor therein named, was thereafter appointed and qualified as such executor. He was an heir at law of said decedent and at- all times since his appointment was and now is the duly appointed, qualified and acting executor of the will of decedent. After his qualification and on May 14, 1935, decedent’s widow filed her petition for an order to set apart a probate homestead, Leonard Evans, the attorney for the executor and said estate being duly served with a copy thereof on the same date. Hearing on said petition was set for May 31, 1935, and notice of the hearing thereof was given in the manner required by the Probate Code. On May 31st said petition was heard and Mr. Evans, the attorney representing said estate, was present in court.

The matter was regularly continued and on June 15, 1935, the court set apart to the widow the homestead in question for the period of her natural life. The order setting apart the property as a homestead is appealable (Probate Code, sec. 1240), and no appeal having been taken, it became final 60 days after June 15, 1935. On September 13, 1935, appel

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lants filed their motion to vacate said order on the ground of mistake, inadvertence, surprise and excusable neglect, as contemplated by section 473 of the Code of Civil Procedure, which motion was, after several continuances, duly heard and denied by the court on November 14, 1935. On November 25, 1935, notice of appeal was served and filed by appellants from the order denying their petition and motion to vacate the order setting apart the homestead.

It is to be noted that this appeal is in the probate proceeding of the estate of Thomas Grossing, deceased. The appeal cannot be considered. The order sought to be reviewed is not one from which an appeal lies. The appellate jurisdiction in probate matters extends only to such orders and judgments as are specified in the third subdivision of section 963 of the Code of Civil Procedure and in section 1240 of the Probate Code. This rule is subject to the limitation that an appeal will lie from an order granting or denying a motion for new trial in those proceedings in probate in which such motion is proper. The provision of subdivision 2 of section 963 of the Code of Civil Procedure that an appeal may be taken from a special order made after final judgment has no application to probate proceedings. The order here in question is not embraced within the provisions of subdivision 3 of section 963 of the Code of Civil Procedure or within the terms of Probate Code, section 1240.