Costa v. Superior Court

THE COURT.

Petition for writ of review. It appears from the petition that plaintiff was appointed administrator of the estate of George W. Fay. Thereafter, May 27, 1898, the estate was distributed to the heirs of Fay. Pursuant to the decree, plaintiff paid to the distributees all the funds not disbursed in the course of administration, except $410.55. On April 14, 1899, said Fay filed a petition in said court in said matter, in which it was shown that he was the identical Fay whose estate was being administered by plaintiff as administrator. The petition set forth the proceedings by which plaintiff became possessed of Fay’s property as administrator ; that during all the time the proceedings in administration were pending said Fay was absent from the state and ignorant

[80]

of said proceedings, and that he, the said Fay, is alive and in the flesh. He prayed: 1. That citation issue to plaintiff, Costa, said pretended administrator, to show cause why all the proceedings had by him in said matter should not be set aside; 2. Why all the property described in said proceedings, and received by Costa, should not be returned to the court by said pretended administrator, free from all charges and claims of every nature; and 3. Why all said property should not be forthwith ordered by the court paid to said petitioner, Fay. Citation duly issued, and Costa appeared without demurrer or answer, and consented that the court might set aside the proceedings had in the probate court, for want of jurisdiction, but denied the right of the court to determine any other matter involved in the litigation. It was stipulated that in the present proceeding the transcript in S. F. 2032, in the matter of the estate of George W. Fay, deceased, now on file in -this court, should constitute the complete return to the petition for a writ of review. At page 49 of said transcript (as also set out in the present petition) is the following: “Finding 16: That said superior court never had or acquired jurisdiction to appoint said James A. Costa as administrator or to administer upon the estate of George W. Fay.” The petition before us, then, shows that the court decreed as follows:—

“First—That all the proceedings taken and had in the matter of the estate of George W. Fay be set aside and annulled.

“Second—That all the property and estate of said George W. Fay received by James A. Costa, and described in the inventory,—to wit, the sum of $1,543.68, less the sum of twenty-five dollars (already received by Fay),—be returned and paid to the said George W. Fay, free from any and all claims or titles set up or asserted thereto by the said James A. Costa as said administrator or otherwise, or any one claiming under him.