Clay v. Wall

HAYNES, C. Respondent, Mary T. Wall, filed her petition asking that said estate (consisting principally of real estate, of which there were several parcels) be distributed -to her as the sole heir of said decedent, who died intestate. Appellants contested her heirship and right to distribution. Hpon the hearing, the court made findings of fact and conclusions of law ini her favor, followed by the words: “Let distribution of said estate be made accordingly.” Before the entry of any order or decree thereon the first of these appeals (Ho. 451) was taken, and respondent contends- that it was premature, and must be dismissed.

[529]Section 1704 of the Code of Civil Procedure provides that “all orders and decrees of the court or judge must be entered at length in the minute-book of the court”; and it is obvious that such order or decree, when it provides for the distribution of an estate, must describe the property distributed; and section 1715 of the Code of Civil Procedure provides that “the appeal must be taken within sixty days after the order, decree, or judgment is entered”; and for the purposes of an appeal it is “entered” when it is entered at large upon the minutes. (In re Blythe, 110 Cal. 226.) This appeal (No. 451) was therefore premature, and should be dismissed.

The second of these appeals, bio. 504, is taken by the same contestants from the judgment or decree subsequently made and entered pursuant to said findings and order. The transcripts in the two appeals are identically the same, except that the second transcript sets out the judgment which was entered after the first appeal was taken. The record contains two bills of exceptions, setting out the proceedings so far as is necessary to a decision of the questions made.

1. It is contended by-appellants that the court had no jurisdiction to entertain the petition for distribution, or to make any order directing distribution of the estate, or to determine who were the legal heirs of the deceased, for the reason that the petition therefor was prematurely filed.

W. T. Sheid died intestate March 9, 1896, leaving an estate consisting of real and personal property. An administrator was appointed March 25, 1896, and letters of administration were issued to him ón April 9, 1896.

On May 2d notice to creditors was given, allowing ten months for the presentation of claims, and on April 3, 1897, the administrator filed his final account, which was allowed and settled on April 15, 1897.