Lyle v. Anglo-California National Bank

WARD, J. This is an appeal from the order of the superior court denying the petition of appellant for an allowance of attorney fees and costs from her estate for the prosecution of an appeal designated as Civil No. 13131. (See ante, p. 153 [174 P.2d 906].) Appellant assumes that as she may appeal from the orders adjudging her incompetent, an allowance to finance this appeal may be ordered, and hence an order denying such allowance is appealable.

The Constitution provides that the Supreme Court shall have jurisdiction “in all such probate matters as may be provided by law.” (Const., art. VI, §4.) Hence, the right of appeal in probate matters is purely statutory, and exists only in those cases in which it is given by statute. (Estate of Funkenstein, 170 Cal. 594 [150 P. 987].)

Probate Code, section 1630, provides: “An appeal may be taken to the Supreme Court from an order granting or revoking letters of guardianship settling an account of a guardian; instructing or directing a guardian; or refusing to make any order heretofore mentioned in this section. ’ ’ The latter clause, is of no assistance in the present matter as no provision exists in the code relative to orders for an allowance out of an alleged incompetent's estate to finance an appeal from the order declaring incompetency.

In Guardianship of Reser, 57 Cal.App.2d 935, 936 [135 P.2d 709], the court said: “In Guardianship of Morro, 36 Cal.App.2d 623, 627 [98 P.2d 552], it was held that this section [Probate Code, § 1630] was exclusive and that an appeal would not lie from an order not mentioned in the section. The same rule has been uniformly followed in the construction of section 1240 of the Probate Code relating to appeals in probate matters. (See 11A Cal.Jur., p. 204.) In the Morro case the court said: (p. 627) ‘The jurisdiction of an appellate court in probate matters extends only to such orders and judgments as are made appealable by the Probate Code. (In re Walkerly, 94 Cal. 352 [29 P. 719].) The provision that an appeal may be taken from a special order made after final judgment has no application to probate proceedings. (Estate of Allen, 175 Cal. 356 [165 P. 1011].) Even if the court acted in excess of its jurisdiction, a question we find unnecessary to determine, the nonappealable order of the court was not thereby made appealable. (In re Seymour, 15 Cal.App. 287 [114 P. 1023].)’”

[161]In re Walkerly, 94 Cal. 352 [29 P. 719], held that an order denying a motion to vacate an order denying a petition of an executor for allowance of compensation for extraordinary services, and to restore the petition to the calendar, was not an appealable order as it was not mentioned in Code of Civil Procedure, section 963, subdivision 3 (now Prob. Code, § 1630).