Dockweiler v. Superior Court

MOORE, P. J. Petitioners demand a peremptory writ of mandate commanding respondent to proceed with the hearing and determination of a petition for ratable distribution. The alternative writ was granted on the representation that the respondent had, in the course of the hearing of the petition, announced that it was without authority to determine the issues raised by the petition and answer and had “declined to proceed further with respect to the hearing and determination thereof. ’ ’

It appears that in the Estate of Herbert R. Macmillan, deceased, a matter pending before respondent court, a petition for ratable distribution alleged that the estate owned 47 per cent of the lessee’s interest in the Thrash lease for oil and gas; that by virtue of a contract between the heirs at law of the intestate decedent such interest was to be distributed to petitioners and Malcolm R. Macmillan, share and share alike; that time for filing claims had expired and that following a ratable distribution adequate assets would remain with which to pay unpaid claims and costs of administration and that an indebtedness incurred by the administrator had been paid or could be offset. After Malcolm R. Macmillan had declined to file a petition for ratable distribution or to participate in the proceedings therefor the administrator filed his answer disclaiming any objection to petitioners’ request except that if it be granted it be subject to petitioners’ assuming an indebtedness to Gordon Macmillan in the sum of $37,000 loaned by him to the administrator.

In the course of the hearing of the petition the judge stated that he was convinced that the petition was not properly one for ratable distribution but that it could be treated as a petition for partial distribution and that such distribution might be ordered, on condition that a bond commensurate with the value of the property to be distributed be executed and delivered to the administrator; that the petition “is not really a petition for ratable distribution for the reason that ratable distribution means proportionate distribution to all the heirs and not to just those who seek to get their portion of the estate . . . ratable distribution contemplates that all of the [746]heirs will get a proportionate share of what they are entitled to, and this petition seeks distribution to two heirs who are interested in this forty-seven per cent of the Thrash lease. So it cannot be granted as a ratable distribution . . . this petition could be treated as one for partial distribution . . . to these heirs, provided they will put up a bond in an amount which the Court deems appropriate under the circumstances. If the petitioners do not desire to put up a bond, I will have to deny the petition because it is not a proper statutory proceeding ... I will give you both the opportunity to do some research on the subject, so the court will be advised as to whether or not it can make an order for partial distribution . . . and I will take the matter under submission until a week from today. In the meantime you may submit such authorities as you wish to . . . The matter is under submission and you may submit such authorities, both of you, as you deem are appropriate . . . The matter will be submitted. ’ ’