Jacobsmeyer v. Superior Court

BARNARD, P. J.

Petitioner seeks by writ of review to annul an order made by the respondent court and judge purporting to vacate and set aside a decree of distribution and an order discharging the executrix.

On May 31, 1930, this petitioner filed a petition for probate of the alleged last will of Frank Fianke, deceased, which will, dated April 18, 1930, purported to give to this petitioner all of the property owned by said deceased and named her as executrix thereof. A contest and opposition to the

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probate of this will was filed by one Wilfred T. Wall, alleging that the testator was of unsound mind on the date of the execution of the will and that said will was not properly executed. Shortly thereafter this petitioner asked for special letters of administration, her petition alleging that there "would be an unusual delay in probating the will but not referring to the opposition and contest of the will which had been filed. On July 11, 1930, an order was entered appointing the petitioner special administratrix with power to collect and preserve the property of the estate, and ordering that special letters be issued to .her in conformity with the order. On August 15, 1930, an order was entered reciting that petitioner was appointed special administratrix with limited powers on July 11, 1930, that it appeared that a contest had been filed prior to making such order, that it appeared that under such circumstances the order of July 11th should have given the special administratrix general powers, and ordering that petitioner be appointed special administratrix with general powers, that the bond theretofore furnished by her be re-approved, and that the order be made and entered

nunc pro tunc

as of July 11, 1930.

Special letters of administration with general powers were issued, and attached thereto is an oath purporting to have been taken by petitioner, as special administratrix with general powers, on July 11, 1930. A few months later petitioner published a notice to creditors for the required time. On September 4, 1931, an order was entered dismissing the contest to the will above referred to. On September 18, 1931, the will was admitted to probate and this petitioner was appointed executrix thereof, and on that same day she filed her final account as special administratrix and also her final account as executrix of the will, with a petition for distribution. It does not appear that this final account of the special administratrix was ever set for hearing, that the same was ever settled, or that an order was ever made approving and allowing said account. However, on October 2, 1931, her final account as executrix was approved and all of the remaining property was ordered distributed to this petitioner. On October 24, 1931,.a decree was entered discharging the petitioner as special administratrix and as executrix.