In Re Seymour

Simon H. Seymour, deceased, and Susan C. Seymour, deceased, were, during their lives, husband and wife, having intermarried in the year 1877. In June 1904, Simon, while spending the summer with his wife at Bartlett Springs, this state, died, leaving no children. Susan was, in the same month, appointed special administratrix of Simon's estate by the superior court of the city and county of San Francisco, and discharged the duties of that office until the purposes of the special administration were fully accomplished and the last will of the deceased was admitted to probate. The last-mentioned proceeding was had in the month of April, 1905, and letters testamentary granted and issued to Reuben H. Lloyd and E. W. Hawkins.

The other facts relating and leading to the order from which this appeal is taken are accurately narrated in his brief by counsel for the executors of Simon's estate, and we will, therefore, adopt the same here as the statement of said facts:

"The Seymour family having no suitable burial ground, the body of Simon was temporarily deposited in the public vault of the Cypress Lawn Cemetery, in San Mateo county. In *Page 289 April, 1906, the widow, desiring to place the corpse in a permanent grave, and having selected the cemetery agreeable to her, petitioned the court to direct the executors so to inter. On the day set for the hearing of the petition, San Francisco was in flames, thus preventing the hearing of the petition. Nothing was thereafter done about the matter until August 9, 1907, when, in pursuance of a petition of Simon's executors, an order was made authorizing the executors to 'purchase a burial plot in the Masonic Cemetery in which to inter the body of Simon H. Seymour, deceased, and to erect an appropriate monument upon the grave of said decedent, at a cost not to exceed the sum of $5,000.'

"Previously, and on July 16, 1906, Susan died. On October 23, 1907, a notice of motion to vacate the order of August 9th, together with a supporting affidavit, was served and filed by the executor of the will of Susan. On June 4, 1908, the petition of Sarah Harrington and Robert McBryant, sister and brother and next of kin of Susan, was filed, praying the court to set aside the order of August 9th, in relation to the burial of Simon. The petition was supported by an affidavit setting forth that Simon and Susan had in their lifetime desired to be buried together with George Kordmeier and John McBryant, respectively the brother of Simon and the father of Susan. The two motions were heard from June 14, 1908, to June 16, 1908. On June 19, 1908, the motions were denied on the ground that the moving parties had no interest in the controversy."

The controversy is brought here by an appeal from the order denying the motion of the executor of Susan's estate and that of Harrington and McBryant to set aside and vacate the order authorizing the executors of Simon's estate to "purchase a burial plot in the Masonic Cemetery in which to inter the body of Simon H. Seymour, deceased, and to erect an appropriate monument upon the grave of said decedent, at a cost not to exceed the sum of $5,000."