In re Estate of Crooks
Before: Temple
Synopsis
Estates of Deceased Persons—Distribution—Mortgagee of Devisee—The distribution of the estate of a deceased person cannot be made to the mortgagee of an heir or devisee, or to an assignee as security, who is not a grantee of the heir or visee. The decree must name the persons entitled under will, or by succession, or their grantees.
Id.—Right op Mortgagee to be Heard—Intervention—Pleading.—The mortgagee has a right to be heard where his interests are affected by the decree of distribution; but no intervention should be allowed on his part, unless sustained by some pleading or statement as to the grounds on which he claims the right to be heard.
Id.—Appeal by Mortgagee—Aggrieved Party—Insufficient Record—Dismissal.—An appeal by the mortgagee from the decree of distribution, the record upon which merely shows an offer of the mortgage in evidence, unaccompanied by a pleading or statement of facts, or by any showing that the mortgage debt was not paid, and does not show that the mortgagee is an aggrieved party, must be dismissed.
TEMPLE, J. Susan Crooks died a resident of San Francisco, April 28, 1894, testate, and leaving a large estate. The will was probated, the executors qualified, and administration proceeded until the twenty-eighth day of November, 1897, when a petition was filed showing that the estate was ready for distribution. Notice was given, and April 1, 1898, the matter came on for hearing.
At the hearing the appellants, Wemple and Arnold, appeared and offered in evidence a document which purported to be a mortgage executed by Eobert Lee Crooks, one of the devisees mentioned in the will of the testator, and also one of her heirs-at-law, upon all the right, title, and interest of the mortgagor of, in, and to all the real estate in the two inventories in the estate of Matthexv Crooks, and all the real estate in the inventory in the estate of Susan Crooks, and all the other real estate in which Eobert Lee Crooks may have any interest as heir at law of Matthew Crooks or Susan Crooks, to secure the payment of a certain promissory note for the sum of six thousand dollars and interest. The note was then past due. Wemple and Arnold filed no pleading or other appearance in writing. The attorney simply appeared in the courtroom, offered the mortgage in evidence, and proposed to ask that the share of Eobert Lee be distributed to them. In the mortgage it was stated that “the party of the first part authorizes and directs the probate court to distribute, set over, transfer, and deliver to the party of the second part all his right, title, and interest in and to said estate as security for the payment of said promissory note.”
To this offer Robert Lee Crooks objected, on the ground that the law does not warrant the distribution of an estate to an assignee as security, but only to heirs, devisees, and their grantees. The objection was sustained, the appellants excepting, and the distribution was made regardless of the claim of appellants.
The offer of the mortgage in evidence was not accompanied by a statement as to other facts which the appellants undertook to prove, and, as no appearance was made in writing, it does not appear that the debt has not been paid. Motion is now [461]made to dismiss the appeal because it is not made to appear from the record that appellants are aggrieved parties.
The only section of the code authorizing distribution to the grantees of an heir, or a devisee, is section 1678 of the Code of Civil Procedure.
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