Opinion
Department Two
Appeal from a decree of the Superior Court of the city and county of San Francisco distributing the estate of a deceased person, and from certain orders made therein.
COUNSEL:
A. D. Splivalo, and John Reynolds, for Appellants.
J. M. Burnett, and E. D. Sawyer, for Respondent.
JUDGES: Foote, C. Searls, C., and Belcher, C. C., concurred.
OPINION
FOOTE, Judge
In this case the trial court dismissed a petition for the revocation of the probate of a will, as it was directed to do by this court in Estate of Sbarboro , 63 Cal. 9, and we perceive no error in such action.
And from the order made therein no appeal lies under section 963, subdivision 3, of the Code of Civil Procedure, since such an order is not there mentioned as being appealable.
And the order made denying the motion of contestants of the will to set aside and vacate all the orders and decrees made by the late Probate Court is not made appealable under the section supra .
The court, having dismissed the petition heretofore mentioned, proceeded to distribute the estate of the decedent in accordance with his wishes expressed in the will.
The decree made for that purpose the appellants seek to reverse on the ground, as they allege, that [11 P. 564] the notice required by section 1633 of the Code of Civil Procedure was improperly given. That notice, which is in due form, was signed by the clerk of the proper court, through his deputy; it was posted according to law, as the affidavit of Frank Grimes annexed thereto shows, he being a person qualified by law so to do. There is no evidence in the record that he did not act for said clerk, or that said notice did not remain where posted for the time required by law, and the final decree of distribution contains this recital: "And it appears by proper evidence that the notice as prescribed by law had been given of the hearing of said petition and of the settlement of said final account." All of which is sufficient and conclusive evidence of the fact that the necessary notice was given. (McClellan v. Downey , 63 Cal. 520-523.)
The appeals from the orders should be dismissed, and the decree appealed from should be affirmed.
The Court. -- For the reasons given in the foregoing opinion, the appeals from the orders are dismissed, and the decree is affirmed.