In re the Estate of Wittmeier

dissenting. I dissent. The cases cited in the opinion of Justice Henshaw undoubtedly show that this court has more than once decided that an order made after final judgment in a probate proceeding is not appealable, and the present decision is therefore supported by abundant precedent.

I think, however, that the decisions referred to are one and all based upon an erroneous construction of section 963 of the Code *257 of Civil Procedure, and that it is not too late do correct tlie error; for no vested right would be impaired by holding now that the statute does give an appeal in a case in which, the right has heretofore been denied.

The first subdivision of said section allows an appeal from a final judgment, whether entered in an action or special proceeding commenced in the superior court. A final decree of distribution of a decedent’s estate is certainly a final judgment in a special proceeding commenced in a superior court, and comes within the express words of this clause.

By subdivision 2 of said section an appeal is allowed from any special order made after final judgment. Why limit this to an order made after final judgment in an action—excluding judgments in special…

Magdalena Wittmeier, executrix, filed her final account in the matter of the estate of J. G-. Wittmeier, and also petitioned for distribution. Her account was settled and distribution decreed. G-. A. Wittmeier was a legatee under the will, and had assigned his legacy, amounting to one thousand dollars, to John C. Hughes. By the decree this legacy was ordered distributed and paid to Hughes.

The executrix, failing and refusing to pay over the money, was cited to show cause. After hearing she was found to be contumacious, adjudged guilty of contempt, and was ordered committed to jail until she complied with the terms of the decree of distribution. From the order adjudging her in contempt she has taken an appeal. This is a motion to dismiss that appeal.

*256 It is well established that obedience by executor or administrator to a decree of distribution may be enforced by contempt proceedings. (Ex parte Smith, 53 Cal. 204 ; Ex parte Cohn, 55 Cal. 193 ; Sayers v. Superior Court, 84 Cal. 642 ; In re Clary, 112 Cal. 292 .)

Appeals in probate proceedings lie only from such orders and decrees as are enumerated in section 963, subdivision 3, of the Code of Civil Procedure. (Estate of…