The record-union., 1891-03-28
SUPREME COURT DECISIONS.

EFiled at Sacramento, March 10, 1S911
Appeal from the Superior Court of
Nevada County-J. w. Walling, Judge.
For appellants, John Caldwell.
For respondents, P. +. SimondS and
James A. Stidger.
IN BANK.
In the matter of the estate of
WILLIAM WEsTERFIELD,
deceased.
MARY b. SMITH EFT AL, No 70 oa5
Appellants, A''o'''
VS..
JAMES G. WEsTERFIELD EFT
AL, Respondents.
William Westerfield died intestate in
Nevada County, October Is, 1888, and on
the 29th of that month letters of admin
1stration upon his estate were issued out
of the Superior Court of that county to
the Public Administrator. February ~,
1889, the plaintiffs herein filed in said
Superior Court their petition in the mat
ter of said estate for a determination by
the court of the interests of all parties in
the. estate, and to whom distribution
thereof should be made, and that upon
final hearing thereof they be declared to
be the sole heirs of said estate, and that
the estate be distributed to them. There
upon, upon the same day, the court
made an order that notice be given re-
quiring all persons claiming to be inter-
ested in said estate to appear before said
courtson the Goth day of May, 1889, and
exhibit their respective claims of heir
ship or other interest in said estate, and
directing that said notice be personally
served ION all persons herein named,
and all other persons known as
claiming any interest in said estate,
at least thirty days before the time fixed
for said appearances" and further
directing that ''service of said notice be
made on all said persons claiming inter-
est in said estate by publication thereof
in the Daily Transcript, newspaper
published in said Nevada county, and
that said publication be made at least
once a week for seventy consecutive days
before the time herein named for such
appearance At the time of filing said
petition and making said order no person
had appeared claiming any interest in the
said estate other than the petitioners, nor
were any other persons named in said
petition or order. Notice as required by
said order was on the same day issued by
the clerk OF the court, and on the 9th
day of May, 1889, the court made its order
and Decree stating that "due and legal
notice to all persons claiming an interest
in said estate as heirs at law of said de-
ceased or otherwise has been given, and
that the same is established of record,
and that this decree be entered in the
minutes of this court" At various dates
prior to July %, 1889, the plaintiffs and
the defendants herein filed their appear
ance and respective claims of heirship,
and on that day the court made
an order adjudging ''that the default
of all such persons that have
not appeared herein. as aforesaid, be and
the same is hereby entered according to
law" On the 30th day of July, 1889, the
plaintiffs herein filed their complaint in
the matter of said estate, setting forth
their claims of heirship thereto, and max
ing as defendants the persons who had
previously appeared under said notice
and filed their claims of heirship to said
estate. The defendants thereafter filed
answers to said complaint, setting forth
therein the facts constituting their claim
of heirship, and praying that they be de-
clared TO be the heirs at law of the deceased
and entitled to the distribution of his es-
tate The matter was thereafter tried by the
court, without a jury, and judgment rem
dered that the plaintiffs ''are not and were
not relatives OF said William Westerfield,
deceased, and are not entitled to be de-
creed his heirs at law;'' and also that the
respondents herein ''are the lawful heirs
at law of said William Westerfield, de-
ceased, and as such entitled to inherit his
estate" This judgment was entered Janu-
airy 3, 1890, and the plaintiffs, having
made motion for a new trial upon a
statement of the case, and the same hay-
ing been denied, have appealed from both
the judgment and the order DENYING the
new trial.
Section 1864, c. c. P, provides that
''any person claiming to be heir to the
deceased, or entitled to distribution in
whole or in any part of such estate, may
at any time after the expiration of one
year from the issuing Of letters testa-
mentary, or of administration upon such
estate, file petition i'll the matter of such
estate, praying the court TO ascertain and
declare the rights of all persons to said
estate, and all interests therein, and to
whom distribution thereof should be
made" The section further provides
that upon the filing of said petition the
court shall make an order directing serv-
ice of notice to all persons interested in
said estate to appear and show cause on a
day to be therein named;' and, after pre-
scrlbing the character of the notice to be
given, declares (which notice shall be
served in the same manners as summons
in civil action; upon proof of which
service by affidavit or otherwise to the
satisfaction of the court, the court shall
thereupon acquire jurisdiction to ascer-
tain and determine the heirship, owner
ship and interest of all parties in and to
the property of said deceased
Proceedings for the administration of
the estates of deceased persons, and for
their distribution to those who may be
entitled thereto, including the determi-
nation of the heirs of the decedent arc
purely statutory. The Superior Court.
while sitting as court of probate, has
only such powers as are given it by the
statute, and such incidental powers as
pertain to all courts for the purpose of
enabling them to exercise the jurisdic-
ton which is conferred upon them AL
though it is court of general jurisdic-
ton, yet in the exercise of these powers
its jurisdiction is limited and special, and
whenever its acts are shown to have been
IN excess OF the power conferred upon it.
or without the limits of this special iuris-
diction, such acts are nugatory and have
no binding effect, even upon those who
have invoked its authority or submitted
10 its decision.
The authority conferred upon the Su-
pefior Court by the above section to de-
termine the heirship of claimants to an
estate is a special proceeding" within
the meaning of that term as defined in
the Code of Civil Procedure Section -
Z. {. p, declares that IAN action is an
ordinary proceeding i'll court of Justice
by which one party prosecuteS another
Tor the enforcement or protection of a
right, the redress or prevention of a
wrong, or the punishment of public
offense;" and Section %. of the same CODE
declares that every other remedy is a
special proceeding
jurisdiction of special proceedings is
conferred by the Constitution upon the
Superior Court, but, inasmuch as special
proceedings are only such as are created
and authorized by statute, the court in
the exercise of this jurisdiction is limited
by the terms and conditions under which
the proceedings were authorized.
1t is stated in the briefs of both appel
lants and respondents that this may be
regarded as contest to determine heir
ship under the general provisions of the
probate law, preparatory to the final dis