ERNST KRAMER et al., Petitioners, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, 36 Cal. 2d 159

SHENK, J. This is a proceeding in certiorari to annul an order denying a motion to set aside the decree of distribution in the matter of the estate of Bruno M. Kramer, deceased. The petitioners are nationals and residents of Germany. The decedent died in Los Angeles County on March 12, 1948. The estate consisted entirely of community real and personal property. It was converted to liquid assets, and the residue after specific bequests and charges of administration amounted to approximately $60,000.

By his will, admitted to probate on April 20, 1948, the decedent left one-half of the residue to his deceased wife and the other half to his own named relatives residing in eastern Germany. The rights of the petitioners to take under the will are governed by the following provisions of

section 259 of the Probate Code: “The right of aliens not residing within the United States ... to take real property in this State by succession or testamentary disposition, upon the same terms and conditions as residents and citizens of the United States is dependent in each case upon the existence of a reciprocal right upon the part of citizens of the United States to take real property upon the same terms and conditions as residents and citizens of the respective countries of which such aliens are residents and the right of aliens not residing in the United States . . . to take personal property in this State by succession or testamentary disposition, upon the same terms and conditions as residents and citizens of the United States is dependent in each case upon the existence of a reciprocal right upon the part of citizens of the United States to take personal property upon the same terms and conditions as residents' and citizens of the respective countries of which such aliens are residents.”

Section 259.1 provides that the burden is upon the nonresident aliens to establish the fact of existence of the reciprocal rights.

Section 259.2 states that if such reciprocal rights are not found to exist and if no heirs other than such aliens are found eligible to take the property, it shall be disposed of as escheated property. The constitutional validity of the foregoing provisions, applicable as of the date of the decedent’s death, has been upheld. (Clark v.

Allen, 331 U.S. 503 [67 S.Ct. 1431, 91 L.Ed, 1633, 170 A.L.R. 953]; Estate of Knutzen, 31 Cal.2d 573 [191 P.2d 747]; Estate of Bevilacqua, 31 Cal.2d 580 [191 P.2d 752].) These eases also establish that it is proper in a probate proceeding to determine the rights of nonresident aliens to take under the testamentary disposition. None of the German legatees appeared in the probate proceeding. In the petition for distribution filed on January 18, 1949, the executor alleged that no “reciprocal agreement” existed between the United States and Germany, and distribution was requested pursuant to

section 259.2 of the Probate Code. On March 10, 1949, the court found in accordance with the executor’s allegations and ordered distribution to the wife’s heirs of one-half of the portion of the residue left to the German legatees and the other one-half to the State of California. There was no appeal from the decree. Within six months after entry, on September 2, 1949, the petitioners moved pursuant to

section 473 of the Code of Civil Procedure to set aside the decree as having been taken against them through their mistake, inadvertence, surprise or excusable neglect.

The factors bearing on these elements were averred to be lack of knowledge by the petitioners other than that they were residuary legatees, and of surprise that the executor would take a position contrary to their interests; also lack of knowledge that they would be required to prove the reciprocal rights of German citizens residing abroad which the state’s representative admits, at least as to realty, were incorporated in an existing treaty between the United States and Germany. (See Clark v.

Allen, supra, 331 U.S. 503.) There was no averment that the notices required by law were not given, or were not received in sufficient time to make an appearance, or to participate in the probate proceeding, or to take an appeal from the decree of distribution. The statement of fact in that respect is that the notices required by law were not sent to the addresses specified in the will, nor to the actual addresses of the residuary legatees, but to addresses supplied from some unknown and unauthorized source. In regard to the time element, distance was also relied on.

Since the order denying the motion was nonappealable, the petitioners were in position to invoke the remedy afforded by the present proceeding. (Prob. Code, § 1240; Howard v. Superior Court, 25 Cal.2d 784, 787 [154 P.2d 849]; Linstead v. Superior Court, 17 Cal.App.2d 9, 11 [61 P.2d 355].) But the relief sought could be granted only if it be shown that the probate court in denying the motion to set aside the decree exceeded its jurisdiction. (Code Civ.

Proc., § 1068; and cases hereinafter cited.) Under the authorities herein cited the probate court has jurisdiction to entertain the motion and to grant or deny the application in the exercise of its discretionary power. (Prob. Code, § 1233; Code Civ. Proc., § 473.) It has been pointed out that on appeals from orders under

section 473 the courts have been favorably disposed toward action on the part of the trial courts which would relieve from default and permit, rather than prevent, the adjudication of controversies on their merits; and that orders granting relief have rarely been reversed and then only for an abuse of discretion. (Benjamin v. Dalmo Mfg. Co., 31 Cal.2d 523, 525 [190 P.2d 593], and cases cited; see also Reidy v. Scott, 53 Cal. 69; Mitchell v. California etc. S. S. Co., 156 Cal. 576 [105 P. 590], and Brasher v.

White, 53 Cal.App. 545 [200 P. 657], where on appeal orders denying relief were reversed.) In addition it is well settled that certiorari will not lie where the only excess of jurisdiction alleged relates to insufficiency of the evidence. (Estate of Kay, 30 Cal,2d 215, 218 [181 P.2d 1]; Howard v. Superior Court, supra, 25 Cal.2d at 789.) Here the probate court acted on the motion in the light of the facts stated in the affidavits claimed to constitute mistake, inadvertence, surprise or excusable neglect. Those statements comprised the evidence upon which the court based its order denying the motion.

What the result might be on an appeal from such an order, or whether the decree of distribution might have been reversed on appeal if one had been taken, or what might be the equitable considerations in a proper action attacking the decree on available grounds, or what might be the result in an escheat proceeding, are not questions properly presented in this proceeding. The determinative factor here is that no reviewable basis is presented in the attack upon the probate court’s exercise of its judicial power.

It cannot be said that the court lacked jurisdiction to make the order based on the evidence before it and there is no contention that the court’s action was on a ground not authorized by statute. The order is affirmed. Gibson, C. J., Edmonds, J., and Spence, J., concurred.