Pyatt v. Brockman — 6 Cal. 418

Majority — Heydenfeldt J.

p. 418

PYATT v. BROCKMAN.

Headnote

The Probate Court has no power to direct that the portion of an estate of an intestate, originally allotted to one of heirs-at-law, a non-resident, shall be distributed among the other heirs, if the non-resident heir shall fail to appear and claim it within a year. The money should be paid into the State Treasury, where it must remain until claimed by the owner, or in case of his death, by his representatives.

Appeal from the Probate Court of Sonoma County.

This was an application by Artemesia Pyatt and others, heirs-at-law of Hiram Smith, deceased, in the Court below, for an order on Israel Brockman, to show cause why he should not pay over to the petitioners the sum of $3,552 29, placed in his hands by the Court a year before, to keep safely for Hiram Smith, Jr., a non-resident minor heir-at-law of the intestate, that being his share of the estate, under an order providing, that if the said Hiram Smith, Jr., did not appear and claim it within one year, then that Brockman was to pay the money equally among the other heirs of the intestate. On the return of the rule, it was made absolute, Brockman not appearing; and Brockman was ordered to distribute the money in his hands equally among the petitioners; it appearing that Hiram Smith, Jr., had not appeared or claimed the money. Brockman appealed.

L. Sanders, Jr., for Appellant.

I. The Probate Court erred in proceeding by default against the appellant, and for want of proper parties.

II. The notice of respondent, that he would apply for a rule to show

p. 419

cause, is not of itself a rule, and none was served on appellant, and he was not in default.

III. There is no showing that Hiram Smith, Jr., had abandoned his claim, that he was of age, or that he was dead, or if dead, who were his heirs.

Thomas & Hempstead for Respondent.

Mr. Chief Justice Murray concurred.

This is a proceeding which is totally unauthorized, and the petitioners have no right whatever to the fund they seek. It is the money of Hiram Smith, Jr., and must remain his until he dies, or disposes of it. The duty of Brockman is to pay it into the State Treasury, where it must remain until the owner comes to reclaim it, or in case of his death, it is claimed by his representatives.

The order of the Probate Court is reversed.