In re Estate of Couts

Harrison, J. Upon the former appeal herein (87 Cal. 480), it was held that the petition for the order of sale was sufficient, and that determination is conclusive of the question upon the present appeal. The subsequent permission of the court below to allow Mrs. Dear to file objections to granting an order of sale does not give her any right to renew the objections to the sufficiency of the petition. By the proper publication of the order to show cause why the petition should not be granted, she was brought within the jurisdiction of the court, and was bound by its action as fully by her default for not appearing as if she had appeared and contested the sufficiency of the petition; and the determination by this court upon an appeal from that order was equally binding upon her. We do not, however, wish to be understood as intimating that the petition is in any respect defective, but to show that the question cannot be regarded us open for discussion.

It is not necessary for the court below, after our reversal of its former order, to again give the notice required by section 1539 of the Code of Civil Procedure. By the original compliance with the require-[403]merits of that section it had obtained jurisdiction in the matter and over all parties interested therein; and its subsequent action upon the petition was a movement within its jurisdiction, to be reversed only for some error in law which might be shown upon a direct appeal. After the remittitur had been tiled therein, that court was at liberty to hear and dispose of the petition upon such notice as might he provided by its general rules, or as it might deem reasonable in the particular case; and unless it should be made to appear that it had abused its discretion in this respect, or that the parties entitled thereto had been prevented from a hearing, its action is not to be set aside. No claim of surprise or inability to properly present their objections was made herein, but the only objection to a hearing was the want of the statutory notice aforesaid, and this, as we have seen, was not required.

May 29, 1889, the executrix filed her account of receipts and disbursement on account of the estate from the 29th of January, 1887, to the 9th of May, 1889, and of all sums of money belonging to the said estate which had come into her bands as such executrix, and in the report accompanying her account stated that the respondent herein and some others had claims against her as executrix, the validity of which, as charges against the said estate, she asked the court to determine. Upon proper notice therefor this account was settled September 6, 1889, and in the order settling the account the court found that she had expended all the money that had been received by her as executrix, together with three hundred and fifteen dollars and three cents in addition, for which she was entitled to credit, and also that the claim of the respondent herein for twelve hundred and forty dollars and fifty-seven cents, mentioned in the report accompanjdng her account, was a legal charge against the estate, and she was directed to pay the same out of the moneys of said estate which might thereafter come into her hands as such executrix. At the hearing herein, upon the petition for the order of