An examination of the cases Donald cites to support his argument makes this plain. For example, Donald cites Estate of Wise (1949) 34 Cal.2d 376, 210 P.2d 497 (Wise), for the proposition that the courtโs order in a section 11700 proceeding is "a decree in rem," and is "res judicata as to the whole world." (Id. at p. 381, 210 P.2d 497.)
Furthermore, an heirship proceeding is not an ordinary civil action, but a specialized proceeding in rem. ( Estate ofWise, 34 Cal.2d 376, 383 [ 210 P.2d 497].) The sole purpose of such a proceeding is to "determine who are the heirs of the decedent or entitled to distribution of the estate and [to] . . . specify their interests."
(4) After expiration of the time for direct attack of an order of the probate court, the order is binding upon the whole world, if it is not void for lack of jurisdiction. (See Estate of Callnon (1969) 70 Cal.2d 150 [ 74 Cal.Rptr. 250, 449 P.2d 186]; Estate of Wise (1949) 34 Cal.2d 376, 383-385 [ 210 P.2d 497]; Abels v. Frey, supra, 126 Cal.App. 48, 53; 1 Cal. Decedent Administration, supra, at ยง 5.29, p. 201.) However, the term "jurisdiction" has several meanings with regard to the validity of judgments and orders.
Under such circumstances the appellant herein was in no position thereafter to assert that his petition relating to Clara's claim which was set for hearing on July 12, 1962, and the prior petition on behalf of Lena, treated as a statement of her claim of interest in response to appellant's petition, did not frame the issue of which person, Lena or Clara, was the lawful wife of Harry at the time of his death. (See Brainard v. Brainard, 76 Cal.App.2d 850, 853 [ 174 P.2d 702]; cf. Estate of Wise, 34 Cal.2d 376, 382 [ 210 P.2d 497].) The procedure followed was such that the court had jurisdiction to determine that issue.
It is also argued by respondents that the words of the statute "adopted by the decedent in conformity with the laws of this state" (emphasis added) should be construed to mean not only in conformity with the statutory law of this state but the law as set forth by a decision of a court of competent jurisdiction. Respondents also argue that George took the money by inheritance; that a stranger may not inherit; that it was only by reason of his inheritance that George is subject to an inheritance tax.[1a, 2] This court has held ( Estate of Wise, 34 Cal.2d 376 [ 210 P.2d 497]) that the jurisdiction of the probate court is a jurisdiction in rem; that an heirship proceeding is not an ordinary civil action, but a specialized proceeding in rem. The res is the right of heirship and distribution and as to that issue the decree is binding on the whole world.
Accordingly, there was clearly jurisdiction to award part of the relief sought and it was appropriate that the absent parent be given notice of the action, whether or not he would be bound by the adjudication. In the Fordham case the determination of parentage was ancillary to the administration of an estate subject to the court's jurisdiction, and the court had power to determine the question of heirship without securing personal jurisdiction over all of the parties. (See Estate of Wise, 34 Cal.2d 376, 385 [ 210 P.2d 497].) The question remains whether plaintiff is entitled to maintain this action despite the court's lack of power to make a binding determination that he is defendant's child without personal jurisdiction over defendant.
On a collateral attack, " '[t]he record is the judgment roll,' " and the judgment roll " 'is the only evidence that can be considered in determining the question of jurisdiction.' " (Buckley, supra, 132 Cal.App.3d at p. 450, quoting Estate of Wise (1949) 34 Cal.2d 376, 382 (Wise).) In his briefing, Moore notes that the documents comprising the judgment roll in probate actions are listed in section 1050, and include: "[a]ny notice of the hearing, and any order to show cause made in the proceeding, with the affidavits showing publication, posting, or delivery pursuant to Section 1215 of the notice or order as may be required by law or court order."
Here the graduated fee operates as an ad valorem tax because probate is an in rem proceeding in which the court supervises the administration of estate assets. ( Estate of Wise (1949) 34 Cal.2d 376, 382 [ 210 P.2d 497]; see David v. Hermann (2005) 129 Cal.App.4th 672, 682 [ 28 Cal.Rptr.3d 622] [no in rem jurisdiction unless there are estate assets].) The amount of the filing fee is based on the appraised value of the estate assets (i.e., the probate "res") rendering the fee indistinguishable from the ad valorem tax in Fatjo v. Pfister, supra, 117 Cal. 83. Until the graduated filing fee and surcharge is paid, and a receipt is presented to the probate court, there is no final distribution.
The precedents cited in Wendy's brief regarding in rem jurisdiction of the probate court over a decedent's assets have no application in the absence of a probate estate. ( Estate of Wise (1949) 34 Cal.2d 376, 382 [ 210 P.2d 497]; Prob. Code, ยง 7051.) Similarly, the cited authority regarding the continuing and exclusive jurisdiction of the probate court presupposes an estate subject to administration.
Further, as in the estate case, the court designated the ruling in the trust case an "order." Hall relies on Estate of Wise (1949) 34 Cal.2d 376 [ 210 P.2d 497] and Estate of Roberts (1945) 27 Cal.2d 70 [ 162 P.2d 461] to support his contention that the probate court's rulings on Wilson's petitions were final judgments. However, Wise and Roberts both involved former sections 1080-1082, which have been superseded.