Opinion
Rehearing Denied April 19, 1962.
Hearing Granted May 29, 1962.
Opinion vacated 25 Cal.Rptr. 69, 375 P.2d 37.
Robert A. Kaiser, Jeremiah F. O'Neill, Jr., and John E. Nolan, Oakland, for appellant.
Howard S. Dattan, Victor E. Urias and Quintin Whelan, San Diego, for respondents.
SHEPARD, Justice.
This is an appeal from a judgment denying appellant's petition to determine heirship and ordering distribution to charitable beneficiaries named in decedent's will FACTS
The essential facts necessary to the decision of this appeal are as follows: On January 24, 1957, decedent made his will, bequeathing his entire estate ot certain charitable institutions and naming the executor thereof. He died February 1, 1957. He left no spouse, sister, nephew, niece, descendant or ancestor surviving him, but did leave a childless brother, Harvey W. Syster. The will was offered for probate and Syster on February 28, 1957 filed his objections to probate, naming, among other grounds, violation of Probate Code section 41. On March 28, 1957, first publication of notice to creditors was made and proof of publication of notice ot creditors was filed July 12, 1957. Syster died June 3, 1957 and thereafter his administratrix, Balbena Syster, who is his widow, pursued the contest. At the trial the alleged ground of violation of Prob. Code section 41 was by the trial judge excluded from consideration as not being a ground of contest of will. A judgment fefusing probate of the will was appealed, reversed (Estate of Sanderson, 171 Cal.App.2d 651, 341 P.2d 358), and on Oct. 19, 1959 the will was admitted to probate. On November 30, 1959, a petition for final distribution was filed. On December 8, 1959, appellant herein filed a notice of appeal from the order admitting will to probate. That appeal was unsuccessful and the order admitting will to probate was affirmed (Estate of Sanderson, 183 Cal.App.2d 740, 6 Cal.Rptr. 893). On December 10, 1959, appellant filed her objections to the petition for final distribution. These objections included the ground of invalidity of charitable bequests under section 41. On February 2, 1960, appellant filed her petition to determine heirship and therein asserted the invalidity of the charitable bequests as being in violation of the provisions of Probate Code Section 41. Respondent objected that that petition was not filed in time and on the additional ground that it was not filed by a party entitled to raise an objection under the provisions of said section 41.
Full trial was had on the heirship petition and on the objections to the petition for distribution and on April 7, 1961 the trial court ordered the petition to determine heirship dismissed and that the estate be distributed in accordance with the terms of the will. From that order this appeal was taken.
TIME FOR FILING PETITION TO DETERMINE HEIRSHIP
The first contention of appellant is that the finding of the trial court that the petition to determine heirship was not filed within the time provided by law was error. With this we cannot agree.
Preliminarily, it is well to have certain basic principles in mind when approaching the question.
'Since the right of inheritance is not an inherent or natural right but one which exists only by statutory authority, the law of succession is entirely within the control of the Legislature. [Citations.] The designation of heirs and the proportions which they shall receive are subject to the legislative will [Citations] and until the death of the ancestor, the right of inheritance is not a vested one but a mere expectancy.' (Estate of Perkins, 21 Cal.2d 561, 569, 134 P.2d 231, 236[6-7].) See also Estate of Knutzen, 31 Cal.2d 573, 578, 191 P.2d 747.
"Probate proceedings being purely statutory, and therefore special in their nature, the superior court, although a court of general jurisdiction, is circumscribed in this class of proceedings by the provisions of the statute conferring such jurisdiction, and may not competently proceed in a manner essentially different from that provided. [Cita.]" (Bales v. Superior Court, 21 Cal.2d 17, 24, 129 P.2d 685, 689.)
See also Estate of Quinn, 43 Cal.2d 785, 787, 278 P.2d 692 and Estate of Stone 170 Cal.App.2d 533, 535, 339 P.2d 220.
Moving now to the pertinent portions of Probate Court section 1080, which 'When four months have elapsed after the first publication of notice to creditors, and a petition for final distribution has not been filed, the executor or administrator, or any person claiming to be an heir of the decedent or entitled to distribution of the estate or any part thereof may file a petition setting forth his claim or reason and praying that the court determine who are entitled to distribution of the estate.'
This language is clear, definite and certain. The time when a petition to determine heirship can first be filed does not commence until four months after the first publication of notice to creditors. In the case here at bar, that publication was March 28, 1957, thus the first date when such a petition might be filed was July 28, 1957. After that date any person entitled to claim as an heir had until the date of the filing of the petition for distribution to file a petition to determine heirship. That date in the case here at bar was November 30, 1959. Thus appellant had a period of two years and 8 months within which to file but chose not to do so. Here filing occurred more than two months after the time limited by the statute had run.
APPEAL HERE DOES NOT EXTEND TIME
Appellant next contends that because an appeal from the order admitting the will to probate was filed by her on December 8, 1959, her right to file a petition to determine heirship did not terminate until the petition for final distribution was heard and determined. She cites no authority but contends that the Estate of Costa, 37 Cal.2d 154, 231 P.2d 17, cited by respondent, sustains her position. With this we cannot agree. Estate of Costa was decided on the wording of the statute as it existed prior to the amendment of 1949. The pertinent portion of the section as it then existed reads,
'When the time to file or present claims against the estate has expired, but the estate is not in a condition to be closed * * *.'
The statute in its present form resulting from amendments in 1949, 1953 and 1955, is materially different as to time of filing, from its wording at the time the Costa case arose. Of course, had the appeal been successful, the whole course of probate would have been changed and a new petition for final distribution would have been necessary. Under such circumstances the logic of Estate of Costa would apply. However, this did not happen. The appeal was unsuccessful; the order admitting will to probate was affirmed. The net result was that the hearing of the petition for final distribution was suspended during appeal. No new petition was required to be or was filed.
ORDER ADMITTING WILL TO PROBATE IS FINAL
The will was admitted to probate October 19, 1959. The judgment thereon has become final. (Estate of Sanderson, 183 Cal.App.2d 740, 6 Cal.Rptr. 893; Estate of Neubauer, 49 Cal.2d 740, 745, 321 P.2d 741[2-4].) Whether or not an objection grounded on section 41 of the Probate Code was a proper ground of contest of will is not pertinent on the question of whether or not the petition to determine heirship was filed in time and need not be discussed. The attempted inclusion in the contest filed by Harvey W. Syster February 28, 1957 of alleged violation of Probate Code section 41 can in no wise be considered as a petition to determine heirship. As above noted, the statute did not permit the filing of such petition until July 28, 1957, which was five months after the will contest was filed.
HEIRSHIP QUESTION NOT FORECLOSED BY HEIRSHIP PETITION DISMISSAL
However, in spite of the fact that the petition to determine heirship was not filed timely, appellant did file objections to the petition for distribution and there raised COULD APPELLANT ASSERT INVALIDITY?
We are, therefore confronted with the question of whether or not, upon the death of Harvey W. Syster, there being no other persons mentioned in section 41 remaining in existence, the administratrix of the estate of Harvey W. Syster had any right to make the election to assert the limitations of section 41 which he himself could have asserted had he remained alive.
As was said in the Estate of Haines, 76 Cal.App.2d 673, 679, 173 P.2d 693, 696,
'Accordingly, it may be stated that generally speaking a testamentary gift to charity is valid, even though made within 30 days of the testator's death; however, such a gift may nevertheless be avoided at the instance of an aggrieved heir of a designated class; but such heir is not aggrieved unless he would have been entitled to take the property had it not been willed to charity, as in a case where the will contains an alternative disposition to one other than the heir.'
See also Estate of Randall, 86 Cal.App.2d 422, 426, 194 P.2d 709; Estate of Leymel, 103 Cal.App.2d 778, 781, 230 P.2d 48; Estate of Adams, 164 Cal.App.2d 698, 701, 331 P.2d 149[1-2].)
Balbena Syster, the widow, was no relation to Sanderson. Her sole possibility of claim arises in the representative capacity of administratrix. The problem thus narrows down to whether or not Harvey W. Syster's right to challenge the charitable bequests as an aggrieved party was personal to himself or whether it was a property right capable of assignment. If the former, then it would not survive his death. If the latter, it would survive and his personal representative could assert it.
This question was considered at length and decided in Estate of Bunn, 33 Cal.2d 897, 900-901, 206 P.2d 635, 637. It is there said,
'Although the question as to who may assert the invalidity of a devise or bequest subject to the provisions of section 43 of the Probate Code has not been directly decided by the appellate courts of California, under the authorities in other jurisdictions the respondents cannot do so because they are not members of the designated class. 'The prohibition contained in the statute is a limitation upon the right of a testator to dispose of his property in accordance with his own inclinations and desires. It should, therefore, be strictly construed against those seeking to invalidate testamentary provisions.' (Cita.) The Iowa Supreme Court considered hypothetically the situation here presented. 'If such designated parties do not challenge the bequest ot charity, it does not lie in the mouth of any other person to challenge it. It may often happen that a testator will make a bequest to charity * * * and leave a surviving spouse, and the spouse will fully acquiesce in such charitable bequest and wish that the will be carried out in its entirety. The question of whether or not the Supreme Court had adequately considered the problem was again raised in Estate of Bunn, 100 Cal.App.2d 228, 230, 223 P.2d 320, 322; referring to the Supreme Court's quoted ruling, the appellate court there said,
'It was held that only the surviving husband could properly make that claim. We would so decide if the question were open. It is argued now that the husband had no opportunity to assert his rights for the reason that he died before administration of the estate had reached a stage where he could have challenged the bequest to charity, and that therefore his administratrix should have the right. The fact of his early death was noted in the opinion of the Supreme Court in holding that the right was a personal one which did not survive his death.'
See also Mallarino v. Superior Court, 115 Cal.App.2d 781, 784, 252 P.2d 993.
We think these two cases firmly established the rule in California that the right to assert invalidity of a will or portions thereof under said section 41 is strictly personal to one of the relatives named in section 41 and that such right does not survive his death. Balbena Syster, as administratrix of the Estate of Harvey W. Syster, could not assert invalidity under section 41, and her objection to the petition for distribution was properly rejected.
This conclusion renders all other points raised on this appeal moot and no further discussion in necessary.
The judgment appealed from is affirmed.
GRIFFIN, P.J., and COUGHLIN, J., concur.