TREASURE ALICE ARENS, as Administratrix, etc., Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; MAUDE H. McLAREN, Real Party in Interest, 45 Cal. 2d 623

TRAYNOR, J. — On March 7, 1951, approximately 19 years after the death of Channcey L. Hartman, a verified petition was filed in the Superior Court of San Bernardino County on behalf of his widow, Nellie May Hartman, by her son-in-law, Charles R. McLaren, alleging that the decedent had an undivided two-thirds interest in certain real property of the value of $4,075 and that the widow had an undivided one-third interest therein.

The petition prayed that the real property be set apart to the widow “for her lifetime, as a probate homestead, and for such other relief as may be proper in the premises.” On April 18, 1951, the court entered the following order: “The verified petition of Chas. R.

McLaren for an order setting apart a homestead under the provisions of Sections 660 and 661 of the Probate Code, heretofore filed in this Court, came on regularly to be heard this 23rd day of March, 1951; it appears to the satisfaction of the Court, and the Court finds, that notice of the hearing on said petition has been regularly given in accordance with the provisions of

Section 1200 of the Probate Code; and the Court having heard the evidence, it appearing therefrom that the allegations in the petition are true and that at the time of decedent’s death, Nellie May Hartman, the surviving widow, was a member of decedent’s family, and it having been duly made to appear to the Court that no homestead had been selected during the lifetime of the decedent, and it further appearing the property hereinafter described was owned, as to an undivided one-third interest, by Nellie May Hartman, the surviving widow of decedent, as her separate property, and as to the remaining two-thirds interest by decedent, as his separate property, and that said real property should be set aside to the surviving widow. “It Is Hereby Ordered that the land described as follows, to wit: [description omitted] ... be and the same is hereby set apart to Nellie May Hartman1, the widow of decedent, as a homestead for the use of Nellie May Hartman, and that said real property so set aside shall vest absolutely in and belong to her.” On February 3, 1952, Nellie May Hartman died leaving a will in which she sought to devise the real property to her daughter, Maude H.

McLaren. On September 7, 1954, petitioner herein, Treasure Alice Arens, the daughter of decedent Chauncey L. Hartman, noticed a motion to vacate the order of April 18, 1951, setting apart the probate homestead absolutely to Nellie May Hartman, on the grounds that the relief granted was in excess of that prayed for (see Burtnett v. King, 33 Cal.2d 805 [205 P.2d 657, 12 A.L.R.2d 333]) and that under Probate Code,

section 661, the court acted in excess of its jurisdiction in setting apart the probate homestead to Nellie May Hartman absolutely instead of for life. After a hearing the court on September 23, 1954, denied the motion on the grounds that “it appears from the record that since no requests for notice were filed, the notice as given was legally adequate” and that “petitioners’ remedy was a timely appeal from the Order made.” Petitioner seeks a writ of certiorari to review the order denying the motion to vacate the order setting apart the probate homestead.

The order setting aside the probate homestead was an appealable order and became final when the time for appeal expired (Prob. Code, § 1240) whether or not it was in excess of the jurisdiction of the court. (Phelan v. Superior Court, 35 Cal.2d 363, 366 [217 P.2d 951].) Certiorari does not lie to review that order, for the writ can issue only when “there is no appeal.” (Code Civ. Proc., § 1068.) Nor can this rule be avoided by means of a motion to vacate the order. Although the order denying the motion to vacate is not appealable (Kramer v.

Superior Court, 36 Cal.2d 159, 161 [222 P.2d 874]), review of that order would require a review of the order to be vacated, and the appealability of the latter prevents a review thereof by certiorari. Petitioner contends, however, that she could not appeal from the order setting apart the probate homestead because she received no notice of the petition filed by Charles R McLaren or of the order made pursuant thereto, and that therefore certiorari is an available remedy. (See Grinbaum v.

Superior Court, 192 Cal. 528, 556 [221 P. 635].) It is immaterial that petitioner received no actual notice of the petition or of the court’s order.

Section 1200 of the Probate Code, which prescribes the form of notice to be given upon a petition to set apart a probate homestead, does not require actual notice. It provides, however, for special notice to be given to persons requesting it at their post office address given in the request for special notice. Petitioner made no such request.

Section 1200 also provides: “Proof of the giving of notice must be made at the hearing; and if it appears to the satisfaction of the court that said notice has been regularly given, the court shall so find in its order, and such order, when it becomes final, shall be conclusive on all persons.” Since the order of April 18, 1951, quoted above, shows that the foregoing conditions were met, the order is “conclusive on all persons.” Since no such statutory provision was involved in Grinbaum v. Superior Court, supra, and since the record therein affirmatively showed that the required notice was not given, an exception to the rule prescribed by

section 1068 of the Code of Civil Procedure cannot be made under the authority of that case. Since it is clear that certiorari does not lie, we do not reach the question whether or not the order of April 18, 1951, was in excess of the court’s jurisdiction. The proceeding is dismissed. Gibson, C. J., Shenk, J., Edmonds, J., Carter, J., and Spence, J., concurred.