Pritchard v. King

This appeal is from a decree of distribution made and entered in the above-named estate. The appeal is taken by one Sadie E. Pritchard, who claims to be a surviving partner of the decedent and who sought to assert her right as such in the course of the proceedings in the probate court for the administration of said estate, and by seeking to have set aside to her therein and upon the distribution thereof the entire property of said estate. The following are the facts of the case as disclosed by the record upon appeal: Fred G. King died on December 11, 1920, and letters of administration upon his estate were thereafter and in due course issued to his surviving widow on January 4, 1921. Notice to creditors was thereafter duly published and a decree establishing due notice to creditors entered on December 7, 1921. On May 2, 1921, the appellant presented and filed in the probate court a document entitled “Notice of sole surviving partner,’’ wherein the appellant proceeded to set forth that she was, between the years 1891 and 1920 and up to the date of the death of said decedent, his equal partner in all his various deals and business enterprises, and that all of his -estate was partnership property and that she was entitled to have the possession of all of said property delivered to her as such partner by the administratrix of said estate, and she thereby demanded such delivery and an accounting as to the business of said partnership, The administratrix apparently took no action with reference to the claim and demand of the appellant as set forth in said document; nor did the appellant, so far as this record discloses, take any further action thereon until the time arrived for the final distribution of

The appellant makes three contentions upon this appeal: First, that she was entitled to have her first application filed herein acted upon by the administratrix as a "claim” against said estate, and that, in the absence of such action upon her said "claim,” said estate was not in condition for distribution at the time of the making and entry of the decree therefor, from which this appeal is taken; second, that the appellant was entitled to have her said claim to the properties of said estate as the surviving partner of said decedent considered and determined under the provisions of section 1664 of the Code of Civil Procedure and prior to

[1] With respect to the first of these contentions we find it to be without merit. An examination of the document' first presented by the appellant herein in the course of the administration of said estate discloses that it is in no sense a creditor’s claim against said estate, since the sole right which the appellant asserted therein was that of a hostile claimant to the whole of the properties of said estate as the surviving partner of the decedent King. [2] She thus placed herself in the position of a stranger to said estate, seeking to have her claim to the ownership of the whole of the properties of said decedent litigated and determined in the probate court and in the course of the administration of said estate. That the probate court has no jurisdiction to determine adverse claims to the properties of an estate in course of administration before it when asserted by a stranger to said estate has been fully determined in numerous decisions by this court. (Theller v. Such, 57 Cal. 447 ; Bath v. Valdez, 70 Cal. 350 [ 11 Pac. 724 ]; Barnard v. Wilson, 74 Cal. 512 [ 16 Pac. 307 ]; Estate of Ryder, 141 Cal. 366 [ 74 Pac. 993 ]; Cooley v. Miller & Lux, 156 Cal. 510 [ 105 Pac. 981 ].) This being so, the administratrix of said estate had cast upon her no duty to take any action whatever upon the asserted right of the appellant to have delivered over to her the properties of said estate, and it follows that her failure to take such action in no way impeded the right of said administratrix when said estate was otherwise in a condition for distribution to present her petition for the distribution thereof.

[3] With regard to the second contention of the appellant herein, that upon the presentation of said petition for distribution she was entitled to present and have determined her aforesaid claim to the ownership and possession of the entire properties of said estate, under the provisions of section 1664 of the Code of Civil Procedure, we are of the opinion that this contention has also no merit. It is true that section 1664 of said code provides that any person

[4] With respect to the third and final contention of the appellant herein to the effect that she was entitled upon her application therefor, made upon the day set for the hearing upon the petition for distribution, to have the distribution of said estate delayed until such time as she might require to have litigated and determined her adverse claim as surviving partner of said decedent, we find no semblance of merit in said contention. If said appellant had or has any right as surviving partner of said decedent to receive and administer the properties of said estate as the assets of said alleged partnership, it was clearly her duty long prior to the time for the proper distribution of said estate to have instituted an action in a court of law or equity for the determination of her said claims, and doubtless upon the institution of such action and upon a proper showing made therein she would have been accorded the right to have the distribution of the properties of the estate pf her deceased

The decree appealed from is affirmed.

Seawell, J., Curtis, J., Waste, C. J., and Shenk, J., concurred.