Estate of Mailhebuau

At the time of submission of this cause on the merits there was also submitted a motion to dismiss the appeal, which is from an order, purporting to be one in probate, giving to the respondent the right to assert and file a mechanic’s lien against 'certain real property belong ing to the estate and to authorize the institution of proceedings to foreclose such lien.

The claim of respondent is that appeals from orders in probate are controlled by subdivision 3 of section 963 of the Code of Civil Procedure and that no provision can be found therein authorizing the appeal here attempted. Appellant, on the contrary, makes the claim that although the order given was made by the probate court it was in reality a proceeding in equity and a final judgment therein and inasmuch as said judgment was rendered by a court sitting in probate, it was beyond the jurisdiction of said court, nevertheless reviewable on appeal. The position of respondent seems perfectly sound and disposition of this motion will thereby conclude the whole proceeding.

The facts, briefly stated, are that Camille Mailhebuau died testate in San Francisco on December 3, 1924. His widow, Eugenie Bouscal Mailhebuau,…