Ellis v. Bettingen

CONREY, P. J. William J. Bettingen died in the county of Los Angeles, leaving both real and personal property therein. By the terms of his will, which has been duly probated, the sole devisee and legatee is his wife, Mary C. Bettingen, who is the duly qualified executrix under said will.

In the course of administration such proceedings were had that by a decree of partial distribution a,valuable apartment house property, together with its furniture and equipment, was distributed to Mrs. Bettingen. This distribution was made with the express consent of one A. B. Ellis, a creditor whose claim had been duly approved. On April 17, 1933, Ellis filed his petition upon which an order to show cause was issued, wherein Mrs. Bettingen was direqted to appear and show cause why an order should not be made requiring her to pay into the estate for the purpose of paying claims of creditors entitled thereto the sum of $17,000. Mrs. Bettingen having filed her answer, the matter came on for hearing, and after hearing the evidence the court ordered “that Mary C. Bettingen pay to Mary C. Bettingen as executrix of the above entitled estate the sum of $17,000 to be used by her to discharge the indebtedness due from said estate to A. B. Ellis”. From that order Mrs. Bettingen in her individual capacity presents her appeal.

[278]The partial distribution of the estate to Mrs. Bettingen was obtained by a proceeding under the provisions <of section 1661 of the Code of Civil Procedure, which on August 14, 1931, was superseded by section 1001 of the Probate Code. The proceedings under the order to show cause and the order from which the present appeal is taken are governed by section 1002 of the Probate Code. That section reads as follows: ‘1 When a bond- has been executed and delivered under the provisions of the preceding section, and it is necessary for the settlement of the estate to require the payment of any part of the money thereby secured, the executor or administrator must petition the court for an order requiring the payment, and have a citation issued and served on the party bound, requiring him to appear and show cause why the order should not be made. If satisfied, upon the hearing, of the necessity of such payment, the court shall make an order accordingly, designating the amount and giving a time within which it must be paid. If the money is not paid within the time allowed, an action on the bond may be maintained by the executor or administrator.”

It is contended by appellant that respondent as a creditor of the estate was not entitled to institute the proceeding here in question without first taking steps to compel the executrix to proceed pursuant to said section. Prom the record before us it is plain that it would have been useless to make demand upon the executrix that she apply to the court for an order to compel herself to return the money to the funds of the estate. The question is one of procedure and not of jurisdiction. Under the circumstances shown by the evidence in this case the court had inherent power to require the return of the money to the estate. (Heydenfeldt v. Superior Court, 117 Cal. 348 [49 Pac. 210].) To sustain the contention of appellant on this point would be to deprive the court of its power. “Indeed, while the legislature may regulate the mode in which the court shall exercise its jurisdiction, it cannot circumscribe its powers.” (Burris v. Kennedy, 108 Cal. 331, 337 [41 Pac. 458].)