In re De Leon

California Supreme Court May 29, 1804 No. No. 15367Published

Before: Fitzgebald

AI Brief

AI-generated · verify before citing

Holding. The court held that a petition filed under section 1723 of the Code of Civil Procedure may be treated as a complaint in equity to determine property interests, and that a prior decree of distribution is subject to collateral attack by a party who was not in existence at the time the decree was rendered.

Issues

Whether the superior court had jurisdiction to determine property interests after an estate had been closed for seventeen years.
Whether a final decree of distribution is conclusive against a party who was not in existence at the time the decree was rendered.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the facts stated in the petition, notwithstanding its title, are such as to entitle it to be treated as a complaint in equity”

“the decree referred to was and is absolutely void as to the petitioner, as she was not in esse at the time that it was rendered.”

“it follows, upon well-settled authority, that such a decree may be made the subject of collateral attack in a proceeding or action of this character.”

Synopsis

Determination of Life Estate Under Will—Equitable Jurisdiction of Supreme Court—Probate Proceeding—Improper Title of Cause.—A proceeding under section 17Í23 of the Code of Civil Procedure to obtain a decree that a life estate granted under the will of a decedent has been terminated by reason of the death of the one to whom it was granted, should be properly instituted in the superior court under its general jurisdiction and not its probate jurisdiction; but where the facts stated in the petition are such as to entitle it to be treated as a complaint in equity, and the allegations are sufficient in all respects to justify the relief granted, the superior court having jurisdiction of the subject matter and of the parties may grant the proper relief, notwithstanding the improper entitling of the cause as a probate proceeding in the matter of the estate of the deceased testator, which estate had been wound up many years before the filing of the petition.

Id.—Effect of Decree of Distribution—Person Not In Esse—Collateral Attack.—A decree of distribution under a will is not binding upon a person not in esse at the time it was rendered, and such decree may be made the subject of a collateral attack in a proceeding by such person to obtain a decree declaring that a life estate given by the will has terminated.

Fitzgebald, J. This proceeding was brought under section 1723 of the Code of Civil Procedure, which reads as follows:

“If any person has died, or shall hereafter die, who at the time of his death was the owner of a life estate which terminates by reason of the death of such person, any person interested in the property, or in the title thereto, in which such life estate was held, may file in the superior court of the county in which the property is situated his verified petition setting forth such facts, and thereupon, and after such notice by publication or otherwise as the court may order, the court shall hear such petition and the evidence offered in support thereof, and if, upon such hearing, it shall appear that such life estate of such deceased person absolutely terminated by reason of his • death, the court shall make a decree to that effect, and thereupon a certified copy of such decree may be recorded in the office of the county recorder, and thereafter shall have the same effect as a final decree of distribution so recorded.”

The petition substantially alleges that, on the ninth day of April, 1872, Jose Francisco de Leon made, published, and declared his last will and testament, by the terms of which he devised the real property described in said petition to his daughter, Mrs. Virginia Leon de [539]Cima, to hold and enjoy during her life, with the provision that she could not sell or mortgage the same, and that upon her death the said property should “pass to her children in equal portions”; that the said testator died in July, 1873, and his will was thereafter admitted to probate, and Mrs. de Cima, who was named as the executrix therein, thereupon qualified and entered upon her duties as such; that in August, 1874, the court made a decree of distribution under the will decreeing “ that all of the property hereinafter described should go to and vest in the said Virginia Leon de Cima during her life, and upon her death the same should be divided between her four children share and share alike, to wit: Gertrudis Leon de Cima, Frank Cima, John Cima, and Arthur Cima, who were all the children of said Virginia Leon de Cima at the time said decree was made; that after the decree of distribution was made the said Mrs. de Cima was divorced from her husband, Don Juan de Cima, and thereafter, in February, 1893, she intermarried with one Laurent Durstein; that the only issue of this marriage was the petitioner, who was born July 15, 1884; that on the twenty-fifth day of May, 1891, the said Mrs. Virgina de Cima Durstein, mother of petitioner, and the holder of said life estate, died, leaving surviving her as her only children the said Gertrudis, John, and Arthur de Cima, and the said petitioner; that subsequent to the decree of distribution the said John conveyed his interest in the property to the appellants,Emil Kelirlein, Joseph Cuneo, Giacomo Costa, and Giuseppe Cadenasso, who are now the owners thereof.

In re De Leon

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief