Estate of Graber

This is a petition for the removal of executors under the provisions of sections 1436, 1437, 1443 and 1450 of the Code of Civil Procedure. The first application is made by Louis Graber, Jr., who alleges that he “is an heir at law of the said Louis Graber, deceased, and a testamentary heir and legatee under the will of said decedent.” The ground of his application is that the executors have failed to file an inventory within the time appointed by sections 1443, and 1450, and he insists that, such fact appearing, the court has no discretion in the matter, but must grant his prayer. The supreme court has held in Phelan v. Smith, 100 Cal. 169 . 34 Pac. 667 , that the clause in the code under which the executor or administrator is required to file an inventory and appraisement within three months after his appointment is directory. But the counsel for the applicant insist that Phelan *346 v. Smith is entirely foreign to the consideration of the subject matter here in dispute, for that was a collateral attack, upon an exception to the introduction in evidence of a probate record, upon the ground, inter alia, that the inventory had not been filed within three months. The court held that…