Osterloh

An executor appeals from a judgment of the superior court denying his petition to modify an order fixing inheritance tax.

Since the petition was filed more than six months after the order was made, the statutory relief for mistake (Code Civ. Proc., § 473) is unavailable. Hence the executor argues that the mistake in the judgment was extrinsic and may be set aside on principles of equity.

The facts are essentially undisputed. The decedent died on January 7, 1963, leaving an estate in excess of $600,000. Her husband had died less than five years prior, leaving his entire estate to the decedent. Under Revenue and Taxation Code section 14071, the transferees were entitled to an inheritance tax credit for inheritance taxes paid at the death of decedent’s husband.

The executor made no claim for this credit although his inheritance tax affidavit showed that the decedent was the widow of a man who had died less than five years earlier. The order fixing inheritance tax, made August 4, 1964, did not allow any credit for previously taxed property. The mistake was not discovered until April 1967.

The petition for modification, as amended May 15, 1968, offers no explanation for…