Orr v. Riley

TUTTLE, J. This is an action brought by the heirs of John Robert Martin, deceased, to recover certain real and personal property held by the State of California, under and by virtue of an order made by the Superior Court of the County of Colusa, on the 23d day of July, 1920.

On the last mentioned date there was distributed to the State of California, in the absence of known heirs, several parcels of real property, and also the sum of $8,579.40; that said property is now in the custody of the State Treasurer of California.

On January 4, 1938, a petition was filed in the Superior Court, in and for the County of Sacramento, in the matter of the estate of John Robert Martin, deceased, by five per[682]sons, who alleged that they were the sole heirs of said decedent. The petitioners prayed for an order directing the State Treasurer to deliver the whole of said estate to petitioners, pursuant to the provisions of sections 1272 and 1272A of the Code of Civil Procedure. An answer was filed on behalf of the State of California, admitting all the allegations of the petition, except as to the matter of heirship, and also setting up as a bar to said proceeding the provisions of sections 1269, 1272 and 1272A of the Code of Civil Procedure, and section 1027 of the Probate Code. The action came on regularly for trial, and the court found that all the allegations of the petition were true, and that the action was not barred by reason of the provisions of the code sections set up in the answer. Judgment was entered ordering the state controller to draw his warrants on the Treasurer of the State11 of California in favor of the petitioners. It was also adjudged that the real property of the estate was the property of the petitioners. This appeal is taken from the judgment so rendered.

It is the contention of the state that petitioners were barred from appearing and claiming the estate on account of the fact that more than five years had elapsed between the date of the decree of distribution in said estate and the date of the filing of the petition herein. In this connection appellants Harry B. Riley, Controller of the State of California, and Charles B. Johnson, Treasurer of the State of California, rely upon the provisions of section 1269 of the Code of Civil Procedure, which in 1917 read, and still reads as follows:

“If proceedings for the administration of such estate have been instituted, a copy of such order must be filed wth the papers in such estate in the office of the county clerk where such proceedings were had. If proceedings for the administration of any estate of any such decedent have been instituted and none of the persons entitled to succeed thereto have appeared and made claim to such property, or any portion thereof, before the decree of final distribution therein is made, or before the commencement of such proceeding by the attorney general, or if the court shall find that such persons as have appeared are not entitled to the property of such estate, or of any portion thereof, the court shall, upon final settlement of the proceedings for the administration of such estate, after the payment of all debts and expenses of administration, distribute all moneys and other property re