Freeman v. Gless

California Supreme Court Jan 12, 1889 No. No. 12744Published

Before: Thornton

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Holding. The court held that the pendency of a proceeding under section 1664 of the Code of Civil Procedure does not preclude the court from determining heirship during a hearing on a petition for distribution, and the trial court did not abuse its discretion in denying a continuance.

Issues

Whether the pendency of a proceeding under section 1664 of the Code of Civil Procedure bars the court from determining heirship during a hearing on a petition for distribution.
Whether the trial court abused its discretion in denying a motion for a continuance of a distribution hearing pending the outcome of a section 1664 proceeding.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We cannot conceive that the pendency of the proceeding under section 1664 excludes the usual proceeding for the determination of the question of heirship at the hearing of the application for distribution.”

“The exercise of this discretion by the court, unless abused, this court will not interfere with. In our judgment, the court very properly exercised its discretion in refusing to postpone the cause.”

Synopsis

Appeal from, a judgment of the Superior Court of Los Angeles County.

The facts are stated in the opinion of the court.

Thornton, J. — The decedent died testate in the county of Los Angeles on the twenty-sixth day of April, 1886.

By his will the deceased devised, all his estate to the respondent herein, Simon F. Gless. This will was allowed and admitted to probate on the fourth day of February, 1887, and letters testamentary were on the same day issued to the devisee above named, who was by the will appointed executor thereof.

[110]On the ninth day of February, 1888, the appellant herein, Adele Freeman, filed a petition in the superior court of Los Angeles County, under the provisions of section 1664 of the Code of Civil Procedure, claiming to be the only surviving child and heir of the testator, and setting forth that the will of the decedent omitted to provide for the petitioner, his only child, and that it did not appear from the will this omission was intentional. The petition seems to have complied with the requirements of section 1664.

On the same day in February, 1888, the court below made an order directing service of notice to all persons interested in the estate to appear in said court and file their appearance therein, in person or by attorney, on or before the thirty-first day of May, 1888, and to set forth their claims of heirship, etc., on said estate, as required by the section above referred to.

The foregoing notice was issued and placed in the hands of the sheriff for service on the 16th of February, 1888.

On the same day, after the making of the order above mentioned, Gless filed in the same court his final account as executor of the estate of Oxarart, and a petition for the distribution thereof.

Thereupon, on the same day, the court made an order fixing the twenty-first day of February, 1888, for the hearing of this account and petition.

On the 16th of February, 1888, the petitioner herein, Adele Freeman, served on Gless notice of motion for a continuance of the hearing of the above petition for distribution until the determination by the court of the claim of heirship in the estate of Oxarart, made by her, and of the rights of all persons in the estate, in accordance with the prayer of her petition, filed as above stated.

. The notice stated as the ground of the motion the fob lowing: “ That when a petition has been duly filed

Freeman v. Gless

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