rights of the latter and the validity of the judgment depend entirely upon the effect of the compromise agreement or settlement.

Water rights are classed as real property, and hence under the general rule any agreement relating thereto must be in writing. (Code Civ. Proc., secs. 1624, 1971; Hayes v. Fine, 91 Cal. 498, [27 Pac. 772]; Blankenship v. Whaley, 124 Cal. 304, (57 Pac. 79).) But in the case at bar the agreement was acted upon by placing a measuring box in the stream, and actually dividing the water, and by mutual consent of the parties each was placed in possession of one-half thereof. To complete the transfer nothing remained to be done except the execution of a conveyance, conveying a proper proportion of the water to each. Each had a perfect equity, entitling him to a deed from the other. When such is the case, a court of equity, in accordance with its familiar rules, considering that as done which ought to be done, will protect the right obtained “as readily and as fully as a legal title." (Flickinger v. Shaw, 87 Cal. 133, [22 Am. St. Rep. 234, 25 Pac. 79); Blankenship v. Whaley, 124 Cal. 304, (57 Pac. 79), 142 Cal. 566, [76 Pac. 235] ; Griseza v. Terwilliger, 144 Cal. 462, (77 Pac. 1034); Bates v. Babcock, 95 Cal. 486, (29 Am. St. Rep. 133, 30 Pac. 605); 2 Bigelow on Fraud, 445.)

2 There is another principle of law under which the agreement must be held binding. It has been held repeatedly and with practical unanimity that an oral agreement fixing a dividing line between owners of land is not within the statute of frauds, and that when the line is in doubt or dispute a settlement between the owners determines the location of the existing estate of each, and when followed by possession and occupancy, binds them in equity and at law as well. “If the parties have carried the agreement into execution, and entered into possession in accordance with it, the courts will not disturb it, though both parties were mistaken as to the true location of the line." (Jones on Real Property, secs. 354, 358; White v. Spreckels, 75 Cal. 610, (17 Pac. 715); Helm v. Wilson, 76 Cal. 485, (18 Pac. 604].) “It is the policy of the law to give stability to such an agreement, because it is the most satisfactory way of determining the true boundary, and tends to prevent litigation.” (Cavanaugh v. Jackson, 91 Cal. 582, [27 Pac. 931); Dierssen v. Nelson, 138 Cal. 398, (71 Pac. 456).)

This doctrine is based on the common sense proposition that when a dispute exists between two parties, they may adjust their differences by mutual agreement, which, when executed by them will be held binding as to each, and we can think of no reason in law or logic why the principle thus applied to land should not be applied to a case where the parties have deliberately entered into an agreement settling disputed water rights, which agreement was immediately carried into effect and was acquiesced in for a considerable period of time.

And if such an agreement relating to land cannot be disturbed by the parties after it has been carried into effect, a similar executed agreement relating to another class of real property must be held equally efficacious. (Jones on Real Property, secs. 358, 359.) It must, therefore, be held that plaintiff could not repudiate the agreement made, carried into effect, and acquiesced in by him and by defendant. True, both might, by mutual agreement, repudiate it, but neither alone could do so. The court expressly finds that defendant performed the agreement as long as he was permitted to do so by plaintiff, and his subsequent use of the water did not destroy his right to the quantum fixed upon by mutual consent. It is the fixed policy of the law to encourage the settlement of disputes and the prevention of litigation, and when such settlement has been made, acted upon

and acquiesced in, parties will not be permitted to violate the compact unless circumstances of fraud or undue influence are shown. (Downing v. Murray, 113 Cal. 462, [45 Pac. 869]; Pomeroy on Equity Jurisprudence, sec. 850.) The agreement was sufficiently pleaded and proved. The defendant was not required to elect whether he would claim title to all or only part of the water. Having been forced into court to defend his rights, he was at liberty to rely not only on his original claim of right, but upon the rights claimed under the compromise agreement. (Miles v. Woodward, 115 Cal. 314, [46 Pac. 1076); Banta v. Siller, 121 Cal. 418, (53 Pac. 935].)

It would be strange indeed if the plaintiff, relying on his original claim and free to assail any and all rights claimed by defendant, could confine the latter to rights obtained under an agreement, which by the very commencement of the action plaintiff was attempting to repudiate. The findings are not inconsistent. The court in effect finds that plaintiff

4 Cal. App.-8

had a right to the whole of the water, which right was impaired only by his voluntary act in entering into and effectuating the agreement which vested in defendant the right to one-half thereof.

The judgment is affirmed.

Buckles, J., and Chipman, P. J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 14, 1906.

[Civ. No. 214. Second Appellate District.—July 18, 1906.]

ELISA P. ELIZALDE, Administratrix, etc., Appellant, v.

P. W. MURPHY et al., Respondents.

ESTATES OF DECEASED PERSONS—RIGHTS OF ADMINISTRATOR-PAY.

MENTS TO HEIRS BEFORE DISTRIBUTION.—Where an administrator in anticipation of distribution, makes payments to the widow or other heirs on account of their distributive shares, such payments are not a proper subject of final account, and his only rights are, when distribution is ordered, to have the payments retired therefrom, and to receive a credit on account thereof from the distributive share

to be charged. LD.—RIGHTS OF SUBROGATION OF SURETIES ON BOND.—Whatever rights

of subrogation the sureties on the bond of a deceased administrator may have to his rights against distributees, the same can only be

worked out upon the final decree of distribution. ID.-MATTERS OF ACCOUNT.—The allowance of attorney's fees, ex

penses, and for extraordinary services of the administrator can only be adjudicated in the probate court in the settlement of the accounts of the administrator, and if the sureties on his bond may be subrogated to the rights of a deceased principal in respect to such matters, they must be restricted in their enforcement to the mode prescribed for their enforcement by the principal in the probate

court, which has exclusive jurisdiction of all matters of account. ID.-ACTION ON BOND OF DECEASED ADMINISTRATOR- -CHARGES-CREDITS.

In an action on the bond of a deceased administrator he can only be charged with money in his hands belonging to the estate, or money which he has negligently failed to collect, and he is not entitled to be credited with payments to the widow as part of her

distributive share, or for any matters of account. ID.—NOTE NOT COLLECTIBLE-INSOLVENCY OF MAKER—FAILURE TO SUE

NOT NEGLIGENCE.-An administrator is not chargeable with negli. gence in failing to sue upon a promissory note, the maker of which was at all times insolvent, and which had been placed in the hands of & collector, and upon which nothing has been or can be realized. It is only the failure to proceed when a reasonable prospect of col

lection is apparent, which should be said to be negligence. LD.-MEASURE OF DUTY OF ADMINISTRATOR.—The measure of the duty

of an administrator is to act with fidelity and with the degree of prudence and diligence which a man of ordinary judgment would be expected to bestow on his own affairs of like nature.

APPEAL from an order of the Superior Court of Santa Barbara County, denying a new trial. B. T. Williams, Judge

pro tem.

The facts are stated in the opinion of the court.

McD. R. Venable, and B. F. Thomas, for Appellant.

W. A. Richardson, W. H. Spenser, and William Shipsey, for Respondents.

ALLEN, J.-Action upon an administrator's bond. Judgment for plaintiff for a lesser amount than claimed in the complaint. Plaintiff appeals from the order denying a new trial.

It is made to appear in the record that one Graves was appointed administrator of the estate of Elizalde on the twentieth day of January, 1894, and executed a bond at the date of such appointment, and certain subsequent bonds, as required by the order of the court; that on May 28, 1898, said administrator filed his second annual account, which was duly allowed, from which it appears that on said date he held in his possession $5,133.50 belonging to said estate; that the administrator died July 15, 1900, without rendering any further account; that after the filing of his said account the administrator received $562 in addition. Upon a trial of this action, the court below found the administrator had received, and was chargeable with $5,696, and credited him with certain payments not disputed, together with other payments the subject of controversy upon this appeal—one of $940 advanced to the widow as part of her distributive share, and $550 for expenses and attorney's fees to one Leme, and for expenses and extraordinary services of the administrator.

Appellant's contention is that these credits last mentioned were not proper matters to be credited by the court in this action, and no credit therefor should be allowed at the instance of the sureties. With this we agree. In so far as the advance to the widow is concerned, it was not even proper subject of the final account. (Estate of Willey, 140 Cal. 240, [73 Pac. 998]; Estate of Rose, 80 Cal. 179, [22 Pac. 86).) The only right of an administrator who anticipates the dis. tribution to the widow or heirs and pays in advance of such disttribution, is, when distribution is ordered, to have such payments retired therefrom and receive a credit on account thereof from the distributive share so to be charged. (Estate of Willey, 140 Cal. 240, (73 Pac. 998). It does not even appear that any sum will be due the widow upon final distribution; and it is not material what property may have heretofore been distributed to her, against which the administrator in making the advancements made no claim. Whatever may be the rights of subrogation to which defendants are entitled, the same can only be worked out upon the final decree of distribution. We are of opinion, also, that the allowance of attorney's fees, expenses, and for extraordinary services are matters which can only be adjudicated in the probate court in the final or some subsequent account. The mere fact that the administrator made no such claim when filing his previous accounts should not be taken as an absolute waiver. But the reimbursement to which an adminis. trator is entitled on account of such payments or such services is a right personal to himself, and one which he may waive; and until it is asserted, either by the administrator or by his personal representatives, in an account and upon a petition presented to the probate court, they are not proper subjects of adjudication, and were we to say that this right of the principal on the bond to assert the claim is one to which sureties might be subrogated, yet it must follow that such sureties would be restricted in the enforcement of such subrogated rights to the mode prescribed for their enforce