Estate of Burns

Department No. 2, Morrison, C. J.: The transcript on appeal shows that Bernard Burns departed this life, intestate, in the City and County of San Francisco, on the 8th day of December, 1876, leaving real estate situate in said city and county. That on the 22nd day of December of the same year, letters of administration were duly issued to Lizzie Burns, the widow of said deceased, by the Probate Court of the City and County of San Francisco, and administration of said estate was duly had in said Probate Court. That on the 19th day of January, 1877, Lizzie Burns presented her petition to said Court, setting forth that the deceased, Bernard Burns, had not selected and recorded a homestead upon his real estate during his lifetime; that on the 12th day of January, 1877, an inventory and appraisement of the real estate of said deceased was duly filed in said Probate Court, by which it appears that the said Bernard Burns died seized of a certain piece or parcel of land, (describing it) situate in said city and county, of the value of $3,000, and concluding with a prayer that said lot of land be set apart to her as a homestead. The application of said Lizzie Burns was duly considered by the said Probate Court, and on the 26th day of January, 1877, a decree was entered by said Court setting apart said lot of land to the use of petitioner as a homestead. There was no appeal from this decree ; but on the 16th day of July, 1877, one Ann Gordon, representing herself to be a sister of the deceased, Bernard Burns, presented a petition on her own behalf, as well as on behalf of certain other heirs of the deceased, praying the Court to set aside, vacate, and annul said order of January 26th, 1877. To this petition a demurrer was interposed by Lizzie Burns on the 17th day of August, 1877, and on the 25th day of the following month said demurrer was sustained by the Probate Court.

On the 17th day of January, 1878, another petition was presented on behalf of the same parties, for a final account and distribution of the estate of said Bernard Burns, and praying that the said Lizzie Burns be cited and required to render to said Probate Court a full, complete, and final account of her [227]administration of the estate of Bernard Burns, of all the property thereof, both real and personal.

It is apparent that an attempt was thus made to accomplish indirectly what the same parties had failed to obtain by the former petition of J uly 16th, 1877.

This application was denied by the Court on the 1st day of April, 1878 ; and on the 12th day of the same month a motion for a new trial was made, which motion was denied on the 16th day of J uly; and on the 12th day of September, petitioners filed a notice that they appealed to the Supreme Court, “from the order of the Probate Court, made and entered on the 16th day of July, overruling a motion for a new trial upon the matters contained in said petition, and from the whole thereof.”