42 Cal. 462 | Cal. | 1871
The first point for consideration is, whether the plaintiff is entitled to the possession of the demanded premises on his own theory of the facts. Both parties claim through the will of Lorenzo Soto, deceased, which was duly probated, and of which the widow of Soto was appointed and duly qualified as executrix. Whilst acting as executrix, the widow contracted a second marriage, and subsequently, by the joint deed of herself and husband, conveyed said premises to the plaintiff, who insists that the property was devised to the widow by Soto’s will, and that her authority as executrix having ceased when she contracted a second marriage, the administration of the estate became vacant, and, so far as the evidence shows, yet remains so. Assuming these to be the facts, he insists that he is entitled to possession, there being no executor or administrator of the estate. If it be conceded that, if there be no existing administration upon an estate, the heir or devisee can maintain ejectment for the real estate; and if it be further admitted that the marriage of the executrix operated, if so facto, as a revocation of her letters, without any action of the Probate Court declaring the revocation, it by no means follows that the heir or devisee is entitled to the possession, whilst there is a pending and unclosed administration temporarily vacant. On the death of the ancestor his title to real estate passes to the heir or devisee, subject, however, to the right of possession of the executor or administrator for the payment of debts. (Probate Act, Secs. 114, 194; Becket v. Selover, 7 Cal. 215; Meeks v. Hahn, 20 Cal. 627; Matter of Estate of Woodworth, 31 Cal. 604.) And, when there is no administration upon the estate, the heir or devisee may maintain ejectment for the real estate of the
This view of the case renders it unnecessary to notice the other points discussed in the briefs.
Judgment affirmed.
Mr. Chief Justice Bhodes dissented.
Mr. Justice Sprague did not participate in the foregoing decision.