Estate of Mitchell

CHIPMAN, C.

—Appeal by the executors of the testator’s estate from an order making partial distribution to certain lega

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tees and directing a certain sum to be paid to the county treasurer of Stanislaus county as collateral - inheritance tax. The cause was here on a former appeal, and the facts are quite fully stated in the opinion on that appeal and need not be repeated at this time.

(Estate of

Mitchell, 121 Cal. 391.) Briefly, the court below had, by an order dated September 11, 1896, denied the petition of certain legatees for a partial distribution, - the hearing of which was duly noticed. Subsequently, the legatees served personal notice upon the executors, but upon no others, of a motion to vacate the order denying the petition and to grant the petition. The executors objected to the hearing on the ground that no notice had been served upon other interested parties, and on the ground that the court had no jurisdiction. The court granted the motion and made an order vacating the first order denying the petition, and also ordered the distribution prayed for. This order was made February 27, 1897. The executors appealed from this last order, and it was reversed here and “the cause remanded for further proceedings.” The reversal was ordered on account of two errors specifically pointed out, to wit: 1. That the order relieved the legatees from the necessity of giving any bond; and 2. It ordered “the whole of the legacies paid, as shown by the will, without deducting therefrom the sum of eleven hundred and sixty-six dollars and sixty-six and two-thirds cents paid to each of the legatees after the original hearing and before the final hearing.” The point raised as to the sufficiency of the notice of the motion to confer jurisdiction to make the order was remarked upon by Mr. Commissioner Searls, who wrote the opinion, but in promulgating the decision the question as to the sufficiency of the notice was not decided. One of the judges especially disclaimed expressing any opinion upon it, and another judge concurred in the judgment simply. The question was, we think, left open.

Remittitur

went down August 8, 1898. On August 10, 1898, the attorneys for the legatees served notice on the executors (which was filed August 11, 1898) that they would, on August 23, 1898, move the court for an order of partial distribution “in conformity with the decision of the supreme court .... made and filed on the seventh day of July, 1898. Said motion will be made upon the said decision now on file herein and the papers,