Peak v. McGrouther

PETERS, P. J. On January 22, 1957, Florence E. Hewitt died, testate, leaving as her sole heirs her niece and nephew Ethel Peak and Percival Myers, brother and sister. Both filed petitions for letters of administration with the will annexed. After Myers had filed, and before Ethel Peak had filed, the probate court on February 13, 1957, on the ex parte application of Myers, appointed him special administrator. On February 25, 1957, Ethel Peak filed objections to the appointment of Myers, and on the same day filed her petition for letters. On March 11, 1957, after a hearing, the court entered its minute order reading as follows:

“Petition of Ethel M. Peak for Letters of Administration with Will annexed Denied.

“Petition of Percival H. Myers for Letters of Administration with Will annexed Granted.”

• The next day, March 12, 1957, the court entered its formal [586]order admitting the will to probate and appointing Myers administrator with the will annexed.

On March 14, 1957, Ethel Peak appealed from the minute order of March 11, 1957. On April 17, 1957, Ethel Peak filed an amended notice of appeal “from the orders made and entered in the above entitled matter granting the petition of P. H. Myers for letters of administration and the order denying the petition of Ethel M. Peak for letters of administration. . . .

“Said orders were made and entered in the Clerk’s Register on or about March 11, 1957.”

Both notices of appeal refer only to the minute order of March 11, 1957. In part at least, the appeal should have been from the formal order of March 12, 1957. This, however, is of minor importance, and does not render the appeal premature. Under the Rules on Appeal, and the eases interpreting them, the appeal will be considered, so far as necessary, as having been taken from the formal order later entered. (Rule 2(c); Holden v. California Emp. etc. Com., 101 Cal.App.2d 427 [225 P.2d 634]; Smith v. Smith, 126 Cal.App.2d 194 [272 P.2d 118].)

Appellant attempts to attack the order of February 13, 1957, appointing respondent, ex parte, as special administrator. This she may not do. She has not appealed from that order. She could not have done so. Section 460 permits the probate court to appoint a special administrator when the circumstances of the estate require the immediate appointment of a personal representative, and section 461 provides that such appointment “may be made at any time without notice . . . such order is not appealable.” Thus, nothing further need be said about the attack on the order of February 13, 1957.