Estate of Le Fevre

STURTEVANT, J.

This is an appeal by Mills W. Barse, “both personally and as executor,’’ from paragraph II of the “Decree of Distribution to Foreign Executor under Section 1667 of the Code of Civil Procedure.” The appellant brought up a typewritten transcript containing copies of (1) the decree; (2) second and final account and report of executor and petition for final distribution, and (3) notice of appeal. He also brought up a typewritten reporter’s transcript which purports to contain proceedings had on February 5, 1925. However, the reporter’s transcript does not show what part of the probate proceedings were on hearing on said date. After the transcripts were filed and after the respondent Clara Le Fevre Scott had filed her brief the appellant made a motion that he be granted permission to also bring up as a part of his record on appeal the inventory and the final account. The hearing of that motion was continued until the date of the hearing of the appeal. Thereafter the parties stipulated that the appeal might be submitted on the briefs without oral argument. We must assume, therefore, that the motion to bring up additional papers has been abandoned.

In his opening brief the appellants state that the sole question presented on this appeal is whether the superior

[264]

court, sitting as a probate court, exceeded its jurisdiction in making a decree of distribution, determining from the evidence introduced at the hearing that the chattels, household furniture, and furnishings were, at the date of the death of decedent and are now, the property belonging to the estate of said decedent, and that said Mills W. Barse has no right, title, or interest in said property other than the interest acquired by him under the will of said decedent. To that proposition the respondent replied that the record presented to this court does not show that the probate court exceeded its jurisdiction; in other words, that by its decree the probate court attempted to adjudicate title as between the estate and an adverse claimant. In this behalf the respondent contended that such an adjudication under no circumstances could be a part of a decree of distribution because a decree of distribution merely purports to determine who are entitled to share in the estate and the amount of such share. The respondent further contended that while ordinarily a probate court will not undertake to try the title to personal property