Our Supreme Court has held, “[Former section] 1240 of the Probate Code specifies the orders and judgment[s] in probate from which an appeal will lie, and an order denying relief under section 473 of the Code of Civil Procedure is not one of the orders so specified.” (In re Estate of O'Dea (1940) 15 Cal.2d 637, 638, 104 P.2d 368; see In re Conservatorship of Harvey (1970) 3 Cal.3d 646, 652 [holding order denying motion to vacate under Code of Civil Procedure section 473 was not appealable in probate matter].) Because this is a probate matter, the trial court's order denying plaintiffs' motion to vacate under Code of Civil Procedure section 473, subdivision (b) is not appealable.

On several prior occasions controversial issues respecting the status and rights of claimants to this estate have been considered and adjudicated by this court, and for a full recital of the facts regarding the heirship proceeding generally, reference is made to the previous opinions rendered. ( Estate ofO'Dea, 15 Cal.2d 637 [ 104 P.2d 368]; Marlow v. SuperiorCourt, 17 Cal.2d 393 [ 110 P.2d 11]; O'Day v. Superior Court, 18 Cal.2d 540 [ 116 P.2d 621].) The pertinent facts necessary to reach a decision in the present case and as related in the petition and answer thereto are as follows:

Petitioners are two of the numerous claimants to the estate of Michael F. O'Dea, deceased. ( Estate of O'Dea, 15 Cal.2d 637, 638 [ 104 P.2d 368]; Marlow v. Superior Court, 17 Cal.2d 393 [ 110 P.2d 11].) In a proceeding to determine heirship, which is pending and undecided, a judgment of dismissal was entered against them.

We find nothing in the Armstrong case lending support to appellant's contention. The Armstrong case was followed by Estate of O'Dea, 15 Cal.2d 637 [ 104 P.2d 368], which was an appeal from an order denying a motion to set aside an order of dismissal in a proceeding to determine heirship. The court in the O'Dea case stated, pages 638, 639: "Section 1240 of the Probate Code specifies the orders and judgments in probate from which an appeal will lie, and an order denying relief under section 473 of the Code of Civil Procedure is not one of the orders so specified.

[2] It seems to be the rule in California that as probate proceedings are strictly statutory "the only appealable orders in probate matters are those designated in subdivision 3 of section 963 of the Code of Civil Procedure" ( Estate of Edelman, 148 Cal. 233 [ 82 P. 962, 113 Am.St.Rep. 231]) which is now section 1240 of the Probate Code, with the exception of an order made on motion for new trial. ( Estate of Allen, 175 Cal. 356 [ 165 P. 1011]; Estate of Armstrong, 8 Cal.2d 204 [ 64 P.2d 1093]; Estate of O'Dea, 15 Cal.2d 637 [ 104 P.2d 368].) It is intimated that orders such as are now before us are intermediate orders that are reviewable on appeal from an order admitting the will to probate.

Consequently, the general rule is that "no appeal will lie from an order in probate denying relief under section 473 of the Code of Civil Procedure." (Estate of O'Dea (1940) 15 Cal.2d 637, 639.) There are, however, exceptions to this general rule.

An order denying a motion to vacate and set aside a decree of settlement of final account and of final distribution is not one of the orders so specified and is therefore not appealable. ( Estate of Glassgold (1950) 97 Cal.App.2d 859, 863 [ 218 P.2d 1016] (order denying motion under section 473 to vacate decree of final distribution); Estate of O'Dea (1940) 15 Cal.2d 637, 638 [ 104 P.2d 368] (order denying motion under section 473 to be relieved of default for failure to appear at trial); Estate of Smith (1959) 175 Cal.App.2d 803, 805 [ 1 Cal.Rptr. 46] (order denying motion to vacate order appointing administrator); Estate of Nersisian (1957) 155 Cal.App.2d 561, 567 [ 318 P.2d 168] (order denying motion to vacate and set aside decree of partial distribution); Estate of Rouse (1957) 149 Cal.App.2d 674, 679 [ 309 P.2d 34] (order denying motion under section 473 to vacate order settling final account and judgment decreeing distribution).)[2] This is so whether the order denies relief sought under section 473 or under any other legal theory.

(See Rounds v. Dippolito, ante, p. 59 [ 206 P.2d 1083].) Estate of Corcofingas, 24 Cal.2d 517 [ 150 P.2d 194], and Estate of O'Dea, 15 Cal.2d 637 [ 104 P.2d 368], relied upon by respondent, do not support his contention. These cases were decided under Probate Code, section 1240, which enumerates specifically what judgments and orders in probate matters are appealable.

[1] An order refusing to require the production of a testamentary document is not listed as an appealable order in section 1240 of the Probate Code. The present order is, therefore, not appealable (see Howard v. Superior Court, 25 Cal.2d 784, 787 [ 154 P.2d 849]; Estate of O'Dea, 15 Cal.2d 637, 638 [ 104 P.2d 368]; Guardianship of Leach, 29 Cal.2d 535, 539 [ 176 P.2d 369]; Estate of Green, 25 Cal.2d 535, 545 [ 154 P.2d 692]), and the appeal must be dismissed. ( Collins v. Corse, 8 Cal.2d 123, 124 [ 64 P.2d 137]; Guardianship of Lyle, 77 Cal.App.2d 159, 161 [ 174 P.2d 910].)

[5] Although an order granting a new trial in a will contest is not enumerated in section 1240 of the Probate Code, it has become the settled law of this state that such an order is appealable. ( Estate of Armstrong, 8 Cal.2d 204, 208 [ 64 P.2d 1093]; Estate of O'Dea, 15 Cal.2d 637, 638 [ 104 P.2d 368].)[6] Section 629 of the Code of Civil Procedure provides for the making of a motion for judgment notwithstanding the verdict in the alternative form, reserving, if that be denied, the right to apply for a new trial.