French v. Superior Court

SMITH, J.

In this case, one C. W. Buker was, on the twenty-seventh day of July, 1903, duly appointed special administrator of the estate of Harriet M. Arnold, deceased,

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pending the contests of two wills of the decedent of different dates, which still remain undetermined, and has duly qualified as such. May 10, 1904, he rendered and filed in the superior court a report and account or exhibit of the property of the estate received by him and of payments made by him as such administrator. The account or exhibit prayed that a day be appointed for the hearing thereof, and upon the hearing the same be allowed, approved, and settled; and accordingly notice of such hearing was given by the clerk in the usual manner. The matter, however, was not taken up by the court at the time appointed or afterward; but on the twenty-eighth day of March, 1905, the plaintiffs, who are heirs of the deceased and beneficiaries under either will, filed in the superior court their objections .to the account and contested the allowance and settlement of the same, and thereafter, upon due notice to the court, moved the court to hear and determine the issues thus presented. But the court refused, and has ever since refused to hear or determine the issues made by said account and objections, or to appoint a time for the hearing thereof; and this proceeding is an application for a writ of

mandamus

compelling the court to act in the premises.

From the answer of the defendant Conklin it appears that the motion to hear the case was denied by the court on the grounds following: “ (5) That there is no law or provision of law in said state of California requiring or authorizing or permitting said special administrator of said estate to make, render or present any account of his administration of said estate prior k> the time of the appointment of a regular administrator of said estate, or the appointment of an executor under the last will and testament of said decedent. (6) That there is no law or provision of law in said state authorizing or empowering or directing said superior court, or said respondent N. H. Conklin as the judge thereof, to settle or refuse to settle, allow or refuse to allow, or approve or disapprove said account and report of said special administrator prior to the appointment of a regular administrator or an executor as aforesaid. (7) That said superior court has not, nor has said respondent N. H. Conklin, any jurisdiction to allow or disallow, approve or disapprove, or settle or refuse to settle said account of said special administrator prior to the