Mix v. Yoakum

LEMMON, J., pro tem. This action was brought to subject real property alleged to have been fraudulently conveyed by a decedent to defendants, to a claim asserted by appellant against decedent’s estate for money held by decedent during his lifetime, in trust for appellant.

Finis E. Yoakum, Jr., and Charles 0. Yoakum, defendants, are the sons of Finis E. Yoakum, Sr. The father, on August 2, 1920, executed deeds to his two sons, of all real property of which he was then seized, and on the same day executed his last will, in which he named the defendants as executors, and devised and bequeathed his estate to the executors in trust for the Pisgah Home movement. The Pisgah Home movement is an organization for religious purposes, in which the father was deeply interested, and for which he served as pastor. Fifteen days after the exe[293]ration of the deeds and will, the father died. Thereafter, defendants filed the will for probate, and on April 4, 1921, the will was admitted to probate, defendants were appointed executors, qualified as such, and letters testamentary were issued to them.

Appellant presented to the executors a claim against the estate in the sum of $3,300, with interest thereon. No action having been taken thereon by the executors, appellant brought an action therefor against the defendants as executors. From a 'judgment dismissing the action an appeal was taken, and the judgment was reversed by the Supreme Court on March 16, 1927—Mix v. Yoakum, 200 Cal. 681 [254 Pac. 557]. The cause was subsequently tried, and judgment was in favor of appellant in the sum of $6,184.31, to be paid in due course of administration. An appeal from that judgment was dismissed on motion by the Supreme Court on June 3, 1930.

The executors having failed to file an inventory in the estate proceeding, appellant caused them to be served with a citation, and in response thereto an inventory was filed by respondent, Finis E. Yoakum, on March 30, 1929, disclosing assets of $434.19 in cash. Claims, other than the claim of appellant, amounting to approximately the total sum of $30,000, were filed against the estate. The trial court found that the conveyances made by the decedent rendered him insolvent, and that the property of the estate is insufficient to pay appellant’s claim.

Appellant attacks the action of the trial court in overruling his motion to enter the default of the defendant, Charles O. Yoakum. It appears that service of summons upon this defendant had been sought by publication. Charles O. Yoakum appeared specially, and moved to quash the service of summons upon him. His motion was granted. When an order directing service of summons by publication is inadvertently or improperly made the court may quash the service of summons had under such order. (Wilson v. Leo, 19 Cal. App. 793 [127 Pac. 1043].) Neither the order directing publication of summons nor the affidavit and proceedings which were the basis for that order are embodied in the record before us. In the absence of a record embracing these documents we must assume that the order quashing the service of summons has sufficient justification.