Nason v. Superior Court (1919) · DecisionDepot

Nason v. Superior Court

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Jan 23, 1919 No. Civ. No. 2759.Published

Before: Conrey

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Holding. The court annulled the order vacating the administratrix's discharge, holding that the trial court lacked authority to set aside the discharge where the record showed the estate had been fully administered and no evidence of inadvertence existed.

Issues

Whether a court has authority to vacate an order discharging an administratrix based on the assertion that the estate still requires administration.
Whether a court may vacate a discharge order on the grounds of inadvertence when the record contains no evidence of such inadvertence.

Disposition. annulled

Quotations verified verbatim against the opinion

“The order itself, now under review, while it states that the decree of discharge was made inadvertently and ex parte, does not indicate any particular in which the court had acted improvidently or inadvertently.”

Synopsis

PROCEEDING in Certiorari to review an order of the Superior Court vacating the discharge of an administratrix. J. C. Rives, Judge. Order annulled.

The facts are stated in the opinion of the court.

[450]

CONREY, P.

Certiorari. By this proceeding petitioner seeks to have annulled an order vacating an order discharging Mabel A. Nason as administratrix of the estate of Cornelius Walker, deceased.

As appears from the petition, after a contest over heirship between Edwin N. Walker and E. Earle Walker (hereafter referred to for convenience as the Walker twins), and Mabel A. Nason, which contest was decided in favor of Mrs. Nason, the court settled the final account of the administratrix, and rendered a decree of distribution, awarding all of the property of the estate to Mrs. Nason. This decree was entered on the fifteenth day of May, 1916. On May 25th, Mrs. Nason filed a receipt made by her as distributee to herself as administratrix, for all the property distributed, and thereupon she applied for and was granted an order of discharge as administratrix of the estate. ¡

On the eighth day of June, 1916, the Walker twins applied to Judge Wilbur in open court by motion for an order vacating the order that had been made discharging Mrs. Nason as administratrix. Notice that said motion would be made was served upon Mrs. Nason, the grounds of the motion being stated in said notice as follows: “That said administratrix was not and is not entitled as yet to final discharge, and that the condition of the estate is such that it requires an administratrix. ’ ’

No supporting affidavit was served or filed, nor at the time said motion was presented was any testimony introduced; the notice stated that the motion would be made “upon the minutes of the court.” Judge Wilbur never ruled on the motion.

On March 27, 1918, pursuant to notice given, the Walker twins made a motion before Judge Rives to have the motion to vacate order of discharge restored to calendar for hearing and determination. This motion was granted by Judge Rives, and the motion to vacate the order of discharge was given consideration by him and granted. The order granting the motion describes the proceedings taken to restore to calen-dar the motion to vacate, and recites further that the motion was restored to calendar and was heard and argued by the attorneys for the interested parties, and that the court took the matter under submission and ordered affidavits filed, and that affidavits of Ruben P. Schmidt, George M. Barker, and A. M. Case were filed in response to said order. Said affi

Nason v. Superior Court

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Synopsis

CONREY, P.

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