In Re Estate of Mailhebuau

PRESTON, J.

At the time of submission of this cause on the merits there was also submitted a motion to dismiss the appeal, which is from an order, purporting to be one in probate, giving to the respondent the right to assert and file a mechanic’s lien against 'certain real property belong

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ing to the estate and to authorize the institution of proceedings to foreclose such lien.

The claim of respondent is that appeals from orders in probate are controlled by subdivision 3 of section 963 of the Code of Civil Procedure and that no provision can be found therein authorizing the appeal here attempted. Appellant, on the contrary, makes the claim that although the order given was made by the probate court it was in reality a proceeding in equity and a final judgment therein and inasmuch as said judgment was rendered by a court sitting in probate, it was beyond the jurisdiction of said court, nevertheless reviewable on appeal. The position of respondent seems perfectly sound and disposition of this motion will thereby conclude the whole proceeding.

The facts, briefly stated, are that Camille Mailhebuau died testate in San Francisco on December 3, 1924. His widow, Eugenie Bouscal Mailhebuau, thereafter and on December 29, 1924, duly qualified as executrix of his last will and testament. The estate owns a lot, together with improvements thereon, situated in the city and county of San Francisco, and known as No. 441 Pine Street. Respondent owns a large area in the same block which adjoins the property above referred to. In the year 1926, some time after the death of decedent, respondent filed a petition in the said estate in which it asserted that on or about the twenty-fourth day of March, 1926, it commenced the construction of a thirty-story class A building on its said adjoining lot; that prior to the commencement of said building it duly served ©n the executrix of said estate the notice required by section 832 of the Civil Code wherein petitioner gave to said executrix reasonable notice of its intention to commence construction of said building and to make excavations on its said property for the purpose of such construction and notified said executrix to underpin and support said building located on the property of said estate; and that thereafter and on the seventeenth day of June, 1926, said executrix, through J. J. Dunne, her attorney, who was also the attorney for said estate, advised petitioner that the estate had no funds with which to pay the charges for underpinning or supporting said building and requested petitioner to underpin said building, agreeing to execute and deliver to petitioner the promissory note of said executrix covering the cost thereof,