In re Estate of Pritchett

By the Court: The appellant, who is sole .devisee of the entire estate under the will, applied to the Probate Court for a decree of distribution; and it appears from the findings: First. That the will was duly probated, aud the defendant is the administrator with the will annexed, duly appointed aud qualified. Second. That a notice to creditors Avas published as required by law, and the time within which creditors were [569]required to present their claims has fully expired. Third. That all the debts and charges against the estate, including the expenses of administration, have been fully paid, and the estate is ready for distribution. Fourth. That the final account of the administrator has been rendered and duly settled and allowed, from which it appears that there is a balance-in his hands subject to distribution. Fifth. That the testator left no wife nor father, nor issue surviving him, and that his mother (the appellant) is the sole devisee of the entire estate; but the testator left a surviving brother, over twenty-one years of age, residing in England, who has never appeared herein nor assented to the probate of the will, and has taken no steps to contest the same, nor have such steps been taken by any one else. Sixth. That the period of one year has not elapsed since the will was probated.

On these facts the court below held as a conclusion of law that the petition for distribution was premature, and entered an order dismissing the application, from which order the petitioner appeals.

Section 1327 of the Code of Civil Procedure provides that any person interested in the estate of a deceased person may, at any time within one year after the will of such deceased person has been probated, contest the validity of the will; and section 1333 reserves to infants and persons of unsound mind a like period of one year for that purpose, after their respective disabilities are removed. The court below held, that inasmuch as the brother of the deceased had one year within which to contest the validity of the will, and as that time had not elapsed since the will was probated, the petition for distribution was premature. In this ruling we think the court erred. Section 1665 of the same code provides; that upon the final settlement of the accounts of the executor or administrator, or at any subsequent time, upon the application of the executor or administrator or of any heir, legatee or devisee, the court “must” proceed to distribute the residue of the estate, if any, in the hands of the executor or administrator, among the persons who by law are entitled thereto. The command of the statute is peremptory and without qualification; that upon a final settlement of