Gibson v. Winstanley

DORAN, J. This is an appeal from a judgment settling and approving an amended first account current of the public administrator, and for a preliminary distribution in the estate of Mary B. Chrisman Green, deceased.

As set forth in respondent public administrator’s brief, “Mrs. Green’s will left all of her property, with the exception of two small charitable bequests, to one Melba Penn. Mrs. Green’s heirs contested the will and after a prolonged and bitter contest the will was denied admission to probate. An appeal was taken from the judgment. Besides the will contest there were three actions pending in which this respondent and the heirs of Mrs. Green were parties. Following the denial of Mrs. Green’s will to probate, the legatee under the will, and the heirs of Mrs. Green (including the Estate of Mr. Green) entered into an ‘Agreement of Settlement and Compromise ’ dated October 20, 1952, and at the same time the contestants and heirs (including the Estate of Mr. Green), together with Attorney Harry C. Mabry (representing contestants under a contingent fee agreement), entered into an ‘Agreement’ providing for the settlement of the will contest and other litigation and providing for the distribution of the estate assets. The above is set forth to show that neither the Estate of Mr. Green nor Nelle E. Gibson (appellant), individually, were entitled to anything from Mrs. Green’s Estate under her will.” Nelle E. Gibson was a niece of J. Mayer Green, deceased, and was not a relative of Mrs. Green.

[213]Upon being presented with the compromise agreement, the public administrator, representing Mrs. Green’s estate, petitioned the probate court under the provisions of section 718.5 of the Probate Code, for authority to compromise. On December 22, 1952, the compromise was duly approved, and pursuant to the agreement, the public administrator was directed to execute a deed to the estate of Mr. Green, covering the so-called Rodeo property, originally inventoried as a part of Mrs. Green’s estate, and later, by a corrected inventory, taken out of Mrs. Green’s estate. No appeal was taken from these orders.

Appellant’s claim, as disclosed by the briefs filed, is that the judgment appealed from “was erroneous, without jurisdiction and void,” for the reason that appellant Nelle E. Gibson did not have personal notice of the hearing on the petitions to compromise and for distribution; that the compromise agreement on which the order was made, “is void as against, and not binding on, appellant, who did not sign it,” that the orders were the result of a clerical error, and that the trial court “erred in denying appellant’s motion to vacate and set aside the orders of January 9, 1953, purporting to approve the compromise agreement.”