Walkerley v. Greene

Beatty, C. J. This is an original proceeding by mandamus to compel settlement of a bill of exceptions.

Petitioners are some of the residuary legatees of William Walker ley, deceased, whose will was admitted to probate in Alameda county in 1887. In 1892 his executors filed their final account and a petition for distribution of the estate. In August of that year the final account was settled, but the matter of distribution was continued from time to time until November 27, 1893, at which date a decree of distribution was entered, which also embraced the settlement of several- accounts filed by the executors supplemental to their final account. On November 28th, the day following the entry of this decree, the petitioners appealed therefrom to this court, and in due time perfected their appeal. By stipulation of parties, their time to prepare a bill of exceptions to the decree was extended beyond the 16th of December, and on that day they served on all the other interested parties copies of a document entitled in the cause and bearing the following caption:

“BILL OE EXCEPTIONS.

“On appeal from the decree settling the (so-called) final account of the executors and distribution of the estate, made, signed, and filed in the above-entitled action, matter, and proceeding in said superior court, [210]on November 27, 1893, and which was appealed from to the supreme court on the twenty-eighth day of November, 1893, by the contestants, Mary S. Doughty and ten other nieces and nephews of William Walkerley, deceased, and beneficiaries under his last will.”

To this proposed bill of exceptions the attorney for the executors proposed amendments, but at the same time he took and reserved the objection that it was not entitled to settlement because it was a sham and a fraud,, purposely omitting nearly every thing that it ought to contain, and false in the matters set forth. The attorney for the other interested parties, without offering any amendments to the proposed bill, contented himself with giving notice of a motion to strike it out upon similar grounds, viz., that it was false and' insufficient and not proposed in good faith. Upon this motion and these objections the proposed bill, the amendments, and the notice of the petitioners that they refused to accept said amendments were submitted to the respondent, one of the judges of the superior court of Alameda county, who, on March 26, 1894, sustained the motion to strike out, and dismissed the application of the petitioners for a settlement of the bill. Whereupon they filed their petition here for a writ of mandate.