Tymms v. Title Insurance & Trust Co.

NOURSE, J.

On November 27, 1923, the probate court entered its order of partial distribution to one Shersby, distributing to him certain real property in Los Angeles County and $8,487.82 in cash, all belonging to the estate of Ernest A. Tymms, deceased. On May 22, 1924, the father, brothers, and sisters of the deceased served and filed their motion to vacate said order of distribution. This motion was noticed for May 27, 1924, and after several continuances upon agreement of the parties was-finally heard and denied by the probate court on November 25, 1924. The moving parties in

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this motion, representing themselves as heirs at law of the deceased, have appealed from the order denying their motion to vacate said order of partial distribution. The appeal is presented upon the judgment-roll and a bill of exceptions.

The grounds of the motion to vacate as stated in the notice of motion are that the deceased died on March 4, 1923, leaving a last will and testament and a codicil thereto; that said will has not been admitted to probate, but that the codicil thereto was admitted and letters testamentary thereon were issued by the probate court of the county of Los Angeles; that in and by said codicil there was bequeathed to the respondent Shersby “all property of whatever nature belonging to the deceased, situate in the State of California, at the time of the death of said Ernest A. Tymms”; that at the time of said death the only property belonging to the deceased and situated in this state was certain real property in the county of Los Angeles and that no part of said sum of $8,487.82 was situated in this state at that time. Five affidavits were attached to the notice of motion, one executed by one of appellants’ counsel who deposed that he had been informed by the executor of the estate that under date of January 31, 1923, the Perpetual Trustee Company of Australia sent to the deceased a draft dated at Sydney, Australia, January 21, 1923, and drawn on the First National Bank of Los Angeles by the Union Bank of Australia, and that on February 14, 1923, a similar draft, though for a smaller sum, was sent to the deceased; that from information obtained from other sources neither of said drafts was in California prior to the twelfth day of March, 1923. The information upon which the affiant relied regarding the receipt of the drafts is found in the other affidavits attached to the notice, three of which were executed by officials of certain steamship lines and gave the sailing dates of the mail-carrying steamers running between Sydney, Australia, and San Francisco or Vancouver, B. C., during the months of January, February, and March, 1923. The other affidavit was executed by James E. Power, the postmaster at San Francisco, and gave the date of departure and arrival of the mail-carrying steamers of these same steamship companies and stated that those companies were the only ones operating boats carrying mail between Sydney, Australia, and Van