Murphy v. O'Connor

SHAW, J.

This is an appeal by Anna J. Murphy, in her capacity as executrix of the estate of John Murphy, deceased, from an order of partial distribution directing her, as such executrix, to pay to each of the two respondents a legacy of five hundred dollars bequeathed to them, respectively, by the will of the deceased.

The respondents claim that, under the facts shown in the record, the only effect of the partial distribution is to reduce the residue of the estate to the extent of the legacies distributed ; that it affects the interests of the residuary devisees only, and hence, they say, the executrix, as such, has no interest in the controversy, is not a “party aggrieved” by the order, and has no right of appeal therefrom. It may be conceded that this would be the ease if the facts showed no other grounds of appeal than above stated. But the appellant presents for review an issue at law as to the sufficiency of the petition to show that there were sufficient assets to pay the legacies without loss to the creditors. In such a case both the power of the executrix to comply with the order and the right to an immediate distribution are involved, and upon these

[466]

questions the executrix is interested, both personally and on behalf of the creditors, and has a clear right to appeal.

(In re Welch,

106 Cal. 429;

Estate of Kelley,

63 Cal. 106;

Estate of Mitchell,

121 Cal. 391.)

This issue is presented by demurrer to the petition for partial distribution.' The grounds of the demurrer are, that the facts stated do not entitle the petitioner to the relief asked for, and that the petition is uncertain, in that it fails to state the value or nature of the estate, or whether it is money, chattels, or land, or the amount of encumbrances, if any. The only statement on the subject contained in the petition is as follows: ‘1 That said estate is but little indebted; and that the shares and legacies of your petitioners may now be allowed to them without loss to the creditors of the estate of said deceased. ’ ’ This is in the exact language of that part of section 1661 of the Code of Civil Procedure declaring what must be made to appear at the hearing before the order can be granted. Without determining whether or not this would be a sufficient statement of facts if the objection were made by an heir, or by another legatee, we are satisfied that it is sufficient as against the executrix, who, generally, must have greater knowledge of the value and character of the property, the amount of money on hand, and the amount of the indebtedness than any other person. The code does not attempt to prescribe the form or contents of the petition. It is clear that elaborate pleadings are not required or contemplated in the proceeding, and, so far as the executrix is concerned, they are not necessary. On the subject of pleadings in probate courts generally, the author of Woerner on Administration says: “Their procedure is generally summary, requiring no pleading in the technical sense, nor adherence to artificial rules in the statement of a cause of action or defense. An intelligible statement of an existing substantial right, which the court has jurisdiction to enforce, is a sufficient allegation of all matters necessary to sustain a judgment.” (1 Woerner on Administration, p.