
    [No. 9065.
    Department Two.
    September 3, 1886.]
    In the Matter of the Estate of MICHAEL CAHALAN, Deceased.
    Estate of Decedent—Order Settling Account and Discharging Executor — Setting aside. — After the expiration of the time limited by section 473 of the Code of Civil Procedure, a decree settling the final account of an executor and discharging him from his trust, if regular upon its face, cannot be set aside by the Probate Court on the ground that it had been inadvertently and prematurely entered. The remedy in such a case is in equity.
    Id. —Review of Order Setting aside. —An order setting aside a decree settling the final account of an executor, although not directly appeal-able, may be reviewed on an appeal by the executor from a subsequent decree settling his final account.
    
      Appeal from an order of the Superior Court of Santa Clara County settling the final account of an executor, and distributing the estate of a deceased person.
    The final account of the executor of the last will of the deceased was settled and the executor discharged by a decree of the Probate Court entered on the 7th of August, 1875. On the 30th of April, 1880, the respondents, who were children of a deceased sister of the testator, whose names had been omitted from the will, filed a petition seeking to have the decree of the 7th of August, 1875, set aside on the ground that it had been inadvertently and prematurely entered before any order for the distribution of the estate had been made or distribution had. On the 11th of June, 1880, an order was made setting aside the decree of the 7th of August, 1875, from which the executor appealed. The appeal was dismissed on the ground that the order was not appealable. On the 16th of December, 1882, in pursuance of an order of the lower court, the executor filed a final account, which was settled, and distribution of the estate ordered by a decree entered on the 23d of February, 1883. From this decree the executor appealed. The further facts are stated in the opinion.
    
      John Reynolds, for Appellant.
    
      William P. Veuve, and J. J. Burt, for Respondents.
   Foote, C.

An appeal from an order of the Superior Court of Santa Clara County settling a final account of an executor and distributing the decedent’s estate.

Michael Cahalan, the deceased, departed this life on the sixteenth day of December, A. D. 1874, leaving a will dated February 13, 1872, in which the petitioners (respondents), the children of a deceased daughter of the testator, were not mentioned, and by which M. M. Cahalan (the appellant) was constituted executor and residuary legatee.

The will was duly admitted to probate, and letters testamentary issued to the appellant on the ninth day of January, A. D. 1875.

Notice to creditors to exhibit their claims was given February 7, 1875.

A final account was rendered and filed by M. M. Cabalan on the 26th of June, 1875. Accompanying that account was a petition setting forth that all debts had been paid, and all other directions of his testator's will had been faithfully carried out, and asking that a day be appointed for the settlement of his account, and for his discharge. It is recited in the decree ordering the allowance of that account and the discharge of the executor, which order was made on the seventh day of August, 1875, that it had been proven to the satisfaction of the court (then the Probate Court) that due and legal notice had been given of the settlement of said final account; that the executor had paid all the expenses and just claims against the estate of his testator, and all legacies and bequests in said will mentioned; that he had fully and completely discharged the trust mentioned in the eighth subdivision of the will, paid over all the money and delivered all the property as provided in said will; that it fully appeared to the court by documentary evidence and other good and sufficient proof that said executor had fully and completely done, performed, and carried out the provisions' of said last will of said deceased; that he had fully complied with all the orders of the court in the premises; that he had honestly and faithfully discharged all of his duties as such executor; that no other property remained in his hands belonging to the estate; that no further acts remained to be performed by him as executor of said decedent; that he be wholly and absolutely discharged from all further duties and responsibilities as such executor, his letters testamentary were declared vacated, the estate adjudged fully distributed, and the trust settled and closed.

Upon its face, that decree was valid. (Dean v. Supeperior Court, 63 Cal. 473.) And as the statutory period for obtaining relief against it as prescribed in section 473 of the Code of Civil Procedure had long since elapsed, it could only be attacked and set aside on the ground alleged in the petition therefor by a proceeding in equity. (Estate of Hudson, 63 Cal. 454; Dean v. Superior Court, supra.)

But it is said this court cannot upon the present appeal review the order made on the 11th of June, 1880, setting that decree aside.

The order thus made was declared by this court to be one from which an appeal cannot be prosecuted. (Estate of Calahan, 60 Cal. 232.)

It was clearly intermediate, and necessarily affects the judgment from which this appeal is prosecuted, and is reviewable on such appeal. (Code Civ. Proc., sec. 956.)

For if the decree which the order set aside was valid on its face, and could not be, as it was, summarily held for naught, then that now appealed from was affected to the extent that it was utterly void, and no basis existed for the action of the court in making it unless it had first swept away the former decree, and thereby made a starting-point for its jurisdiction and procedure in the premises.

As a result, it follows that the order appealed from was erroneous, and should be reversed, and the cause remanded to be proceeded with in accordance to the views herein expressed.

Seabls, C., and Belcheb, C. C., concurred.

The Court.

For the reasons given in the foregoing opinion, the order is reversed, and cause remanded to be proceeded with in accordance with the views expressed in said opinion.  