[L. A. No. 7268. In Bank.-January 29, 1923.]

In the Matter of the Estate of MARGARET T. CLARK, Deceased. ELIZABETH DAVIS, et al., Appellants, v. JESSIE CLARK NEWTON, Respondent.

[1] ESTATES OF DECEASED PERSONS-DECREE OF DISTRIBUTION-APPEAL BY HEIRS.-Where an administrator refuses to appeal from a decree of final distribution in an estate in which his intestate is interested, the heirs may maintain the appeal.

[2] ID.-ACCEPTANCE OF DISTRIBUTED PORTION - RIGHT OF APPEALThe acceptance by heirs of the portion of an estate distributed to them does not preclude them from maintaining an appeal for the purpose of establishing a greater claim, where they are entitled to the accepted portion in any event.

[3] ID. SUCCESSION AS STATUTORY HEIR CHARACTER OF PROPERTY— JUDGMENT ESTOPPEL-A judgment for the defendant in an action by the administrator of the estate of a husband against the administrator of the estate of the wife to recover property wherein the sole and only issue raised by the pleadings and adjudicated in the action was whether or not the property was the separate property of the husband at the time of his death, or had become prior thereto the separate property of the wife, is conclusive upon the sister of the husband claiming the right upon distribution of the wife's estate to succeed to such property as statutory heir under subdivision 8 of section 1386 of the Civil Code on the theory that it came to the wife by descent from her deceased husband.

EFFECT UPON HEIRS.

[4] ID.-JUDGMENT AGAINST ADMINISTRATOR An adverse judgment in an action prosecuted by an administrator to recover the possession of property alleged to belong to the estate is not only binding upon him but also upon the heirs, since a judgment concludes not only the adverse party but all those claiming under the title which he represents.

[5] JUDGMENTS-ESTOPPEL.-A judgment or decree necessarily affirming the existence of any fact is conclusive upon the parties or their privies whenever the existence of that fact is again in issue between them, not only when the subject matter is the same, but when the point comes incidentally in question in relation to a different matter in the same or any other court.

APPEAL from a part of a decree of final distribution of the Superior Court of Los Angeles County. John M. York, Judge. Reversed.

The facts are stated in the opinion of the court.

George K. Ford and Arthur Wright for Appellants.

James S. Bennett for Respondent.

LENNON, J.-Margaret T. Clark, a resident of Los Angeles County, died intestate on September 9, 1914, leaving surviving her an aunt, Arvilla Armstrong Grover, a sister of said Margaret T. Clark's mother, and also Jessie Clark Newton, a sister of said Margaret T. Clark's deceased husband. Frank Bryson, public administrator, is the duly qualified and acting administrator of the estate of the deceased, which admittedly consisted entirely of personal property derived from Frank E. Clark, husband of the deceased Margaret T. Clark, and which came to him by inheritance from the estate of his mother.

Subsequent to the death of Margaret T. Clark, her aunt, Arvilla Armstrong Grover, died, leaving as her heirs nine children and five grandchildren, the appellants herein, all of whom reside outside of the state. On the twentieth day of October, 1921, Frank Bryson, public administrator, was appointed and ever since has been the duly qualified and acting administrator of the estate of said Arvilla Armstrong Grover, deceased.

A petition for distribution was filed by Bryson, as administrator of the estate of Margaret T. Clark, deceased, alleging that "the next of kin and heirs at law of said deceased are unknown" and praying that said estate be distributed "to the persons entitled thereto."

The children and grandchildren of Arvilla Armstrong Grover, deceased, the appellants herein, as the successors in interest of said Arvilla Armstrong Grover, deceased, presented their petition for distribution, to them, of the entire estate of said Margaret T. Clark, deceased, upon the ground that said Arvilla Armstrong Grover was the only heir at law of said Margaret T. Clark, deceased.

The petition of appellants that all of the estate of Margaret T. Clark, deceased, be distributed to them was opposed by Jessie Clark Newton upon the ground that the property in controversy, at the time of the death of Frank E. Clark, was his separate property and having come to said Margaret

T. Clark by descent, she, Jessie Clark Newton, as sister of said Frank E. Clark, deceased, pursuant to the provisions of the concluding clause of subdivision 8 of section 1386 of the Civil Code, was the statutory heir of Margaret T. Clark, deceased, and, therefore, was entitled to have distributed to her that portion of the said estate. The petition of Jessie Clark Newton was in turn opposed by the heirs of Arvilla Armstrong Grover, deceased, upon the ground that the property in controversy at the time of the death of Frank E. Clark and prior thereto was the separate property of Margaret T. Clark.

Prior to distribution herein, the Pasadena Trust and Savings Bank was appointed and qualified as administrator of the estate of Frank E. Clark, deceased, and as such administrator commenced an action against Bryson, as administrator of the estate of Margaret T. Clark, deceased, to recover from Bryson the possession of all of the property of said last-mentioned estate upon the ground that at the time of the death of Frank E. Clark said property was his separate property and that said Trust and Savings Bank, as the administrator of his estate, was entitled to its possession. The court in that action gave judgment in favor of the administrator of the estate of Margaret T. Clark, deceased, against the administrator of the estate of Frank E. Clark, deceased. The judgment was made and based upon findings "that at the time of her death said property was the separate property of said Margaret T. Clark," and that she "long prior to the death of Frank E. Clark, became the owner, in possession of, and entitled to the possession of said property." That judgment was, upon appeal, affirmed. At this point it should be noted that the opposition and answer of the appellants herein to the petition of the respondent, Jessie Clark Newton, pleaded "that said Jessie Clark Newton was, at the time of the filing of her said petition for distribution herein, since has been and is now estopped" by said above-mentioned judgment from claiming said or any property of the estate of Margaret T. Clark, deceased.

Upon the hearing of the probate proceeding for distribution in the court below, the judgment-roll in the action just above referred to was offered by appellants and received in evidence over the objection of respondent, Jessie Clark New

ton, that it was "incompetent, irrelevant and immaterial and did not constitute an estoppel between any of the parties to the present proceedings."

The court below, sitting in probate, having heard the evidence adduced in response to the issues raised by the petitions and counter-petitions for distribution, found among other things "that said judgment is not binding upon this court sitting in probate and the said Jessie Clark Newton is not estopped by said judgment to claim said estate as heir at law of the said Margaret T. Clark, deceased." The court further found that at the time of the death of Frank E. Clark, his widow, Margaret T. Clark, succeeded to an equal one-half of the property and estate owned by said Frank E. Clark at the time of his death, and that as to the other one-half of the estate of Frank E. Clark, any right to recover possession thereof from the administrator of the estate of Margaret T. Clark had been lost by laches and barred by the statute of limitations. With these findings as a basis the court further found that Jessie Clark Newton, upon the death of Margaret T. Clark, by virtue of and pursuant to the concluding clause of subdivision 8 of section 1386 of the Civil Code, succeeded to the one-half of the estate of said Frank E. Clark, found to have been succeeded to by said Margaret T. Clark. This was virtually a finding that the property in question was the separate property of Frank E. Clark at the time of his death. It was accordingly decreed that one-half of the proceeds of the property and estate of Margaret T. Clark be distributed to Jessie Clark Newton and that the other one-half be distributed to the administrator of the estate of Arvilla Armstrong Grover. The administrator of the estate of Arvilla Armstrong Grover accepted the portion of the estate of Margaret T. Clark so distributed to him and subsequently, upon a petition for distribution in that estate, that portion was distributed to appellants.

The appeal now before us is from that part of the decree of final distribution made in the matter of the estate of said Margaret T. Clark, deceased, awarding to Jessie Clark Newton, respondent herein, "the sum of $11,245.41, being the proceeds of the property and estate of Margaret T. Clark received by her by succession from her said husband, Frank E. Clark, together with the interest, income and other rents,

issues and profits thereof, and amounting to one-half of the estate in the possession of said administrator at the time of the settlement of his final account herein."

It is insisted at the threshold that the appeal should be dismissed and a motion to dismiss has been made, based upon the following grounds: (1) that the heirs of Arvilla Armstrong Grover have no standing to maintain the present appeal and (2) that said heirs are estopped to prosecute this appeal by reason of the fact that they accepted that portion of the estate awarded to them by the decree of distribution in question.

[1] Pursuant to the provisions of the Code of Civil Procedure "successors in interest" are authorized to petition for distribution and "persons interested" are authorized to "appear and contest" the petition of another for distribution and "parties aggrieved" are authorized to appeal. (Secs. 1665, 1668, 1713 to 1715, 938, Code Civ. Proc.) Nevertheless it is insisted by respondent that inasmuch as the exclusive control of actions for the collection of money due an intestate is in the administrator of the estate, this appeal should have been prosecuted by Frank Bryson, as administrator of the estate of Arvilla Armstrong Grover, deceased, in behalf of her heirs, and that the heirs themselves have no standing to maintain this appeal. This appeal, however, is not a civil action brought by the heirs for the collection of money due an intestate, but an appeal from an order of final distribution, which is a proceeding in rem. (William Hill Co. v. Lawler, 116 Cal. 359 [48 Pac. 323].) But, if this had been an action to recover personal property rather than a proceeding for the distribution of the estate of deceased, respondent's contention that the administrator alone could prosecute the appeal cannot be sustained, for the reason that it is an admitted fact in the instant case that the administrator has declined to appeal. The general rule that the heir may not, in his individual capacity, bring an action to collect debts due the estate applies only in the absence of special circumstances. And the refusal of the administrator in the instant case to prosecute the appeal is such a circumstance. (Holland v. McCarthy, 177 Cal. 507 [171 Pac. 421].) Furthermore, if this had been a civil action, the heirs could by proper allegation and by making the administrator a defendant by reason of his refusal to act or join with the heirs,