Eisenmayer v. Thompson

SLOANE, J.

The plaintiff, claiming under a decree of the probate court assigning to her the property in question under the provisions of section 1469 of the Code of Civil Procedure, brings this action to quiet her title against the defendant adversely claiming as a creditor of the estate of plaintiff’s deceased husband.

It is conceded that decedent, George F. Eisenmayer, plaintiff’s husband, died seised of title in fee to lot 13, block 15, of Montecito Park, in the county of Los Angeles, with the dwelling-house thereon occupied by himself and wife as the family residence.

The defendant, W. K. Thompson, pending the administration of said estate, in an action against the administratrix, obtained a judgment against the estate payable in due course of administration for upward of fifty thousand dollars.

[540]

Thereafter, in due course of the administration of the estate, an inventory and appraisement was returned and filed showing the entire estate to consist of $193 in money and this real property, appraised at $2,800, making a total of $2,993. This valuation was subject to a mortgage of $1,900 on the real property, reducing the net value of the estate on the basis of the appraisement to less than $1,500, to wit, $890.

Proceedings were thereupon had in which these facts were set out by petition and this property was assigned to the widow, the plaintiff in this action, in conformity with the provisions of section 1469,

supra,.

The only pretense of any irregularity in the proceedings on the face of the record is that in the notice of the hearing of the application the blanks for the date on which the order to show cause thereon referred to was made were not filled out, and the order to show cause, which was dated August 2, 1919, was marked filed August 1st. These, of course, are inconsequential errors on a collateral attack.

The order of assignment itself recites the filing of the petition, order to show cause, notice of hearing, and the finding of the court that the net value of the whole estate does not exceed the sum of one thousand five hundred dollars, and that all expenses of last illness, funeral charges, and expenses of administration have been paid, and it is thereupon ordered, adjudged, and decreed that the whole of said estate “be and the same is hereby assigned to and the title thereof shall vest absolutely in Marcy K. Eisenmayer, widow of said deceased,’’ subject to mortgages, liens, or encumbrances existing at time of death of decedent. This judgment became final without any attempt to review it by either motion or appeal.