58 P. 908 | Cal. | 1899
This action was brought by plaintiff, as administratrix of the estate of William T.S. Ryer, deceased, against the defendant corporation for the purpose of having the lands described in the amended complaint partitioned according to the respective rights of the plaintiff as such administrator and of defendant corporation.
A demurrer was interposed by defendant to the amended complaint, and overruled. The defendant then answered, and after trial an interlocutory judgment or order was entered ordering the property to be partitioned in certain proportions, and appointing referees to make such partition. The defendant has appealed from said interlocutory judgment. *483
The first point urged is, that the court erred in overruling the demurrer to the amended complaint. The question for determination here is as to whether the administratrix of the estate of deceased, in her representative capacity, can maintain an action for the partition of real estate owned by deceased at the time of his death as tenant in common with defendant. Partition under our code is a special statutory proceeding. (Waterman v. Lawrence,
We must therefore, look to the statute for the authority to bring the action. It is provided in our code (Code Civ. Proc., sec. 752): "When several cotenants hold and are in possession of real property as parceners, joint tenants, or tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for years, an action may be brought by one or more of such persons for a partition thereof," et cetera.
The plaintiff is not one of the parties named in the statute. She is not a cotenant either as parcener, joint tenant, or tenant in common. The code (Code Civ. Proc., sec. 1675 et seq.) provides that in probate proceedings "when the estate, real or personal, assigned by the decree of distribution to two or more heirs, devisees, or legatees, is in common and undivided, and the respective shares are not separated and distinguished, partition or distribution may be made," et cetera, but the proceeding in this case is not claimed to be under the authority given by this section of the code, and in fact is not a proceeding in the estate, but an action in the superior court for partition. We look in vain for any authority to bring such action, and our attention has been called to none. The estate of a deceased vests immediately upon his death in his heirs or devisees, subject, of course, to the payment of his debts. The administrator is entitled to the possession of the estate for the purposes of administration. It is his duty to preserve it and distribute it as the court may direct. He may, for certain purposes named in the statute, sell either the real or personal property by order of the court first obtained. He cannot represent either side in a contest between heirs, devisees, or legatees. He should perform his duty, preserve the estate, pay the debts, and turn over the *484
property to the parties to whom it is given by decree of the court. (Roach v. Coffey,
The statute (Code Civ. Proc., sec. 1582) gives the administrator the right to maintain actions for the recovery of any property, real or personal, or for the possession thereof, or to quiet title thereto, or to determine any adverse claim thereto. But this is not such action. It is said that authority to bring this action exists under the Code of Civil Procedure, section
In Freeman on Cotenancy and Partition, section 454, it is said: "An administrator, though the estate be shown to be insolvent, has no such seisin in the land of the deceased as entitles him to apply for partition."
The same rule is laid down in "The American Law of Administration" by Woerner, second edition, volume 2, section 567, pages 1244, 1245. It is, we believe, universally held that the administrator of an estate has no such interest in the land as entitles him to institute partition proceedings unless power is expressly given him by statute, as in Indiana and Utah.(Whitlock v. Willard,
In the case of Whitlock v Willard, supra, it is said: "In the matter of partition in equity, however, we cannot see where, either before or since the statute of this state controlling this subject, an administrator can be held to have such right, and we have been unable in our examination to find a single case which sustains such proposition. On the contrary, the law as announced, so far as we know, without exception, under every statutory policy, is that he cannot."
Counsel quote a sentence from Bath v. Valdez,
The judgment is reversed, and the court below directed to dismiss the action. *486