Court to direct partition suit in the District Court, when. Proceed ings thereon. If property is common Court to cause appraisement and 1482. If the land from which the selection of the homestead is to be made, is owned by the decedent as joint tenant or tenant in common, the Probate Court must so order, and the executor or administrator must proceed to have partition thereof made by action in the District Court, as provided in this Code; and when partition is so made and certified to the Probate Court, the Probate Court must, if the portion set apart to the estate does not exceed five thousand dollars in value, set the same apart to the claimant, if entitled thereto, and cause the same to be recorded; or, if a sale is had of the land by decree of the District or Probate Court, the proceeds of the sale belonging to the estate, not exceeding five thousand dollars, must be paid to such claimant. 1483. If the land and appurtenances from which or separato, the selection of a homestead is sought, is community or separate property of the decedent, on filing the petition the Court must appoint appraisers, and cause to be made. the same to be admeasured, appraised, reported, and confirmed or rejected, as provided in the preceding sections of this Article. admeas urement New appraise ordered. 1484. If it is made to appear to the Probate Court ment, when that any appraisement of property, constituting the homestead, or from which it is claimed, is either too high or too low, or is unfairly or fraudulently made, the appraisement, by order of the Court, must be annulled and another had, as provided in this Article in case of rejection of a report. Instead of allowing the homestead claimant, or other heirs or devisees, to take the property in this section before mentioned, at its appraised value, as provided in Section 1480, the Court may, in its discretion, or on petition, direct a sale thereof to be had at public auction, after notice of sale given as provided for sales of real estate of a decedent in the course of administration, for the pay Instead of deeding property at appraised value, public sale to be ordered, when. ment of debts or legacies. If more than five thousand dollars is not bid, no sale shall take place, but on report of the facts the property must be set apart as a homestead. to whom succeeding homestead 1485. The costs of all proceedings in the Probate Costs, Court, provided for in this Chapter, must be paid by chargeable. the estate, as expenses of administration. Persons Persons succeeding by purchase or otherwise to the interests, to rights of rights, and title of successors to liomesteads, or to the owners right to have homesteads set apart to them, as in this Chapter provided, have all the rights and benefits conferred by law on the persons whose interests and rights they acquire. 1486. A certified copy of every final order made in pursuance of this Article, by which a report is confirmed, property assigned, or sale confirmed, must be recorded in the office of the Recorder of the county where the homestead property is situated. NOTE. This Article is entirely new, and was intended to provide for every conceivable difficulty arising in the partition of homestead property. The statute of 1870, p. 793, the last enacted on the subject, will be found, on careful examination, to be rather cumbersome, and probably obnoxious to a constitutional objection as to jurisdiction. JURISDICTION.-We do not decide that the Probate Court may not exercise the character of jurisdiction intended by the Act of 1870 to be conferred, for it is provided that the Court may make partition and distribution of estates; but does not this refer to partition among the heirs alone, and not partition where the decedent and a stranger to the estate hold as tenants in common, joint tenants, or coparceners? This matter of partition of the homestead is frequently the most important matter in the settlement of an estate, and, all things considered, it is obviously to the interest of all concerned that it be made by Judges of experience and learning, who, without reflecting upon our County Judges in any manner, we may venture to say are to be found on the district rather than the county bench. If, however, partition can be satisfactorily made by the have all their powers and rights. Certified certain recorded. copies of orders to be Probate Court, this method provides sufficient means for its accomplishment, and a much less expensive and more speedy method than heretofore, through one set of appraisers. Notice to creditors. .CHAPTER VI. OF CLAIMS AGAINST THE ESTATE. SECTION 1490. Notice to creditors. Additional notice. 1492. Copy and proof of notice to be filed and order made. presented. 1494. Claims to be sworn to, and when allowed, to bear same interest as judgments. 1495. Probate Judge may present claim, and action thereon. 1496. Allowance and rejection of claims. 1497. Approved claims or copies to be filed. Claims secured by liens may be described. Lost claims. 1498. Rejected claims to be sued for within three months. 1499. Claims barred by Statute of Limitations. When and who Probate Judge may examine. 1500. Claims must be presented before suit. 1501. Time of limitation. 1502. Claims in action pending at time of decease. 1503. Allowance of claim in part. 1504. Effect of judgment against executor. 1505. Execution not to issue after death. If one is levied the property may be sold. 1506. What judgment is not a lien on real property of estate. 1507. May refer doubtful claims. Effect of referee's allow ance or rejection. 1508. Trial by referee, how confirmed and its effect. 1509. Liability of executor, etc., for costs. 1510. Claims of executor, etc., against estate. 1511. Executor neglecting to give notice to creditors, to be removed. 1512. Executor to return statement of claims. 1490. (§ 128.) Every executor or administrator must, immediately after his appointment, cause to be published in some newspaper of the county, if there be one, if not, then in such newspaper as may be designated by the Court, a notice to the creditors of the decedent, requiring all persons having claims against him to exhibit them, with the necessary vouchers, to the executor or administrator, at the place of his residence or business, to be specified in the notice. Such notice must be published as often as the Judge or Court shall direct, but not less than once a week for four weeks. The Court or Judge Additional may also direct additional notice by publication or posting. In case such executor or administrator resigns, or is removed, before the time expressed in the notice, his successor must give notice only for the unexpired time allowed for such presentation. NOTE.-Stats. 1861, p. 636, Sec. 38. The 1. CLAIMS DEFINED.-In Deck's Est. vs. Gherke, 6 notice. the nature and reason of the case, that the word 'claimant' and 'claim,' are used as synonymous with 'creditor' and 'legal demand for money,' to be paid out of the estate. The statute does not require a presentation of the notes, etc., to be postponed until after publication of notice by the executor, but the holder may anticipate such publication.-Ricketson vs. Richardson, 19 Cal., p. 354. 2. MORTGAGE.—“ Claims are demands which might have been enforced against the decedent in his lifetime, by personal actions for the recovery of money, and upon which only a money judgment could have been rendered." "In this sense," the Court here say, "a mortgage lien is not a claim against the estate."Fallon vs. Butler, 21 Cal., p. 32. In Ellissen vs. Halleck, 6 Cal., 393, the Court say: "The word claim employed by the statute is sufficiently comprehensive to include every species of charge or account against an estate, whether the same be recorded or not." This would indicate that a mortgage could not be sued upon and would be barred, unless presented. But in Willis vs. Farley et al., 24 Cal., p. 499, the Court say: “In some of the earlier cases, it was held that a mortgage creditor, whose claim was allowed, could not maintain an action in the District Court for the foreclosure of his mortgage, but that his debt must abide the administration and settlement of the estate, under the supervision of the Probate Court.-Ellissen vs. Halleck, 6 Cal., p. 392; Falkner vs. Folsom's Executors, 6 Cal., p. 412. But the doctrine of these cases, in this respect, may be said to have been disapproved by the Court in its latter decisions, mainly, if not entirely, on the ground that the District Court had, under the Constitution as it then existed, original jurisdiction, in law and equity, in all cases where the amount in dispute exceeded two hundred dollars, exclusive of interest.Belloc vs. Rogers, 9 Cal., p. 123; Hentsch vs. Porter, 10 Cal., p. 559; Fallon vs. Buttler, 21 Cal., p. 30. By the Constitution as amended, it is provided that District Courts shall have original jurisdiction in all cases in equity.-Article VI, Sec. 6. The foreclosure of mortgages, and the sales of the premises for the payment of debts thereby secured, are matters of purely equitable cognizance. Powers which are granted by the Constitution cannot be taken away by legislative enactments, and remedies which are secured to the citizen by organic law, cannot be destroyed by a department of the Government that exists in subordination of the Constitution. The Probate Court does not pos |