Russ v. Stiller

BROWN (R. M.), J. Appellant appeals from a “Memorandum of Opinion ’ ’ rendered by the trial court with regard to the interpretation of a will involving heirship determination under section 1080 of the Probate Code.

The pretrial order shows that a non jury trial was demanded for questions of law involving the interpretation or construction of a holographic will and that a jury trial was demanded for questions of fact relating to the character, as community or as separate, of real property devised by the will as well as other property in which the decedent had some interest at the time of her death which was not specifically mentioned in the will.

After the nonjury trial on the questions of law the court filed a “Memorandum of Opinion” which is the “order” appealed from, containing the following language:

“It is Hereby Ordered that the Will of the decedent is not ambiguous as to her intentions in the vesting of her interest in the property known as the ‘Pedro Ranch, and all other property there and everything I own there, ’ and that the Court is satisfied that the intention of the decedent is clear from the express language of the Will that it was her intention to create in her surviving husband, Howard J. Russ, in the event he should survive the other persons designated therein, a life estate, with remainder over to her nephew Reuben Sylva, the third son of A. J. and Mary Sylva.”

The opinion proceeds to recite that the court is satisfied and “It is Hereby Ordered” that the other issues relating to the decedent’s interest in property situated in Tuolumne County referred to in the will and property not referred to in the will “are factual matters which will have to be determined by a jury unless agreed upon by the parties. ’ ’

The “Memorandum of Opinion” was not entered as a judgment. It was merely filed, and there was no minute order. Several months later the judge filed a document entitled “Conclusions of Law” which concludes with the words, ‘ ‘ These conclusions are to be Nunc pro tunc as of the date of the decision and order of April 8, 1964.” Such is not appeal-able. (See Miller v. Sharpe, 54 Cal. 590; Lorenz v. Jacobs, 53 Cal. 24, 26.)

A final order or decree in a proceeding to determine heirship is properly entered when spread at length upon the minute book of the probate court, and it is not necessary that it be entered in a judgment book. (See In re Blythe, 110 Cal. 226, 228 [42 P. 641].)

[919]