Heydenfeldt v. Superior Court

Temple, J. This is a proceeding under a writ of review to have a certain order declared void.

The court had made the decree of distribution in the estate of Solomon Heydenfeldt, deceased, and under that decree certain property belonging to the estate was distributed to the petitioner, and in pursuance of the decree was given into her possession by the executors. Subsequently, the decree was reversed by this court on appeal.

After filing the remittitur the executors presented to the probate court a petition setting forth the above facts, and asking for an order requiring the petitioner herein to restore the property so received by her to the executors. To the citation she interposed an answer, in which she denied that she had no title to the property or right of possession other than as devisee and legatee of Solomon Heydenfeldt, deceased, and averred that she was herself the owner of all the property involved in the proceeding. This answer was, on motion, stricken out as sham and frivolous, and the court proceeded, after the hearing, to make the order here complained of.

It will not be contended that the court exceeded its jurisdiction in striking out the answer as sham and frivolous, and, although I see no reason to doubt that it properly exercised its jurisdiction, that question does not arise here. As the answer did not deny that Mrs. Heydenfeldt received the property from the executors, as property of the estate distributed to her, it stated no defense.

[350]But the real question is, Has the superior court, in a probate proceeding, the power to make such an order? The question is not that which was involved in Ex parte Casey, 71 Cal. 269. There the person in possession of property claimed for an estate was in a position to aver a title adverse to the estate. The petitioner here could not do that, unless she denied that she received the property under the decree—which she does not do, and did not attempt to do.

But if in any case an order for restitution may be made of property delivered under a decree of distribution which was reversed, then this writ must be denied. It is claimed that the court had no power to make an order under any circumstances; that it is a court of limited and special jurisdiction, and could do nothing not expressly or impliedly authorized by the statute.

It was ruled in In re Burton, 93 Cal. 459, that the jurisdiction of probate matters was conferred upon the superior courts by the constitution as a part of the jurisdiction of the superior court, and that it is the same court when doing probate work that it is when trying an action. It is only a special proceeding in the superior court;