sales.

Fraudulent 1572. (§ 189.) Any executor or administrator who fraudulently sells any real estate of a decedent contrary to or otherwise than under the provisions of this Chapter, is liable in double the value of the land sold, as liquidated damages, to be recovered in an action by the person having an estate of inheritance therein.

Limitation of actions

sale, etc.

NOTE.-Under our statute the right to possess the realty is in the administrator, till the estate is settled or distribution made, and till then neither the heirs nor their grantees can maintain ejectment.-Meeks vs. Hahn, 20 Cal., p. 628. This rule, however, is changed by the amendment to Sec. 1452, ante; see, also, Boyd vs. Blankman, 29 Cal., p. 35. For fraudulent sale, see Scott vs. Umbarger, (No. 1941), April Term, 1871, cited in note to Sec. 1778, post.

1573. (§ 190.) No action for the recovery of any for vacating estate, sold by an executor or administrator under the provisions of this Chapter, can be maintained by any heir or other person claiming under the decedent, unless it be commenced within three years next after the sale. An action to set aside the sale may be instituted and maintained at any time within three years from the discovery of the fraud, or other grounds upon which the action is based.

NOTE.-See Sec. 1452, ante, and note; also, note to the preceding section, and Scott vs. Umbarger, there cited. In the case of Meeks vs. Kirby (No. 2711), January Term, 1872, Wallace, J., for the Court, says: "That the provisions of this section " (as it stood before the adoption of the Code, the last sentence having been thereby inserted) "apply to sales absolutely void for want of jurisdiction as contradistinguished from sales voidable merely for some defect in procedure, was determined by this Court in Harlan vs. Peck, 33 Cal., p. 515, and reaffirmed here in Harlan vs. Miller, January Term, 1868, not reported; and the reasoning of Sanderson, J., in the opinion he delivered in the former case, is, we think, unanswerable. It is urged, however, that the plaintiff's case is saved from the bar of Sec. 190 (this Code, Sec. 1573), by the effect of the immediately succeeding Sec. 191 (Code Sec. 1574.) * It is said that Meeks, the plaintiff, was under disability to sue, because by Sec. 114 (Code Sec. 1452, ante), and

6

the construction first given it by this Court in Mecks
vs. Hahn, 20 Cal., p. 620 (cited in note to Sec. 1452,
ante), and since then steadily adhered to, the adminis-
trator of the estate of Harlan was alone authorized to
bring an action to recover the premises, and of course
neither the heirs at law of Harlan, nor Meeks, their
grantee, could have maintained the action pending the
administration in the Probate Court. It does not
follow, however, that because Meeks' title, such as it
was, would not, in point of law, have supported an
action to recover the possession of the premises, he is
thereby himself become a person under legal disa-
bility to sue,' and whose right of action is therefore
saved to him by Sec. 191 (Code Sec. 1574, post.) It
cannot be said that a party is under legal disability to
sue within the intent of the statute merely because his
alleged cause of action is not invincible, or because his
adversary might be possessed of a defense which, if
properly interposed, would defeat the action-such, for
instance, as the fact here that the administration of the
estate is still pending. I think the disability here
meant is something personal to the party, and has no ̧
reference to the mere condition of his title." The
Court then proceeds to discuss the statute as one of
repose, to be available to minors and others claiming
under the decedent. The addition to the old section
made by the Code places actions for frauds in sales
under the Probate Practice on precisely the same foot-
ing with others of like character. Justice Crockett, in
a separate opinion, concurred in the conclusion, as also
in the opinion that the disability is personal. It was
not intended by this amendment to give a right of
action to recover an estate sold in due course of admin-
istration in cases other than such as are now recognized
by the Courts under the section prior to amendment
(see Racouillat vs. Requerra, 36 Cal., p. 657), but
simply to fix the limitation of the time within which
such action might be brought at the same period as in
other cases fixed in Subd. 4, Sec. 338, ante. See Meeks
vs. Kirby, supra, concurring opinion by Judge Crock-
ett, suggesting legislation.

1574. (§ 191.) The preceding section shall not apply to minors or others under any legal disability, to

sue at the time when the right of action first accrues; but all such persons may commence an action at any

To what preceding

cases

section not to apply.

Account of sale to be

returned.

Executor,
etc., not
to be
purchaser.

time within three years after the removal of the disability.

NOTE-See "disability," construed in note to the preceding section.-Meeks vs. Kirby.

1575. (§ 192.) When a sale has been made by an executor or administrator, of any property of the estate, real or personal, he must return to the Probate Court, at its next term thereafter, an account of sales, verified by his affidavit. If he neglects to make such return, he may be punished by attachment, or his letters may be revoked, one day's notice having been first given him to appear and show cause why such attachment should not issue, or such revocation should not be made.

NOTE.-See notes to Secs. 1553, 1554, 1855, ante.

1576. ($193.) No executor or administrator must, directly or indirectly, purchase any property of the estate he represents, nor must he be interested in any sale.

NOTE.-See Boyd vs. Blankman, 29 Cal., p. 37.

CHAPTER VIII.

OF THE POWERS AND DUTIES OF EXECUTORS AND ADMIN-
ISTRATORS, AND OF THE MANAGEMENT OF ESTATES.

SECTION 1581. Executors to take possession of the entire estate.
1582. Executors may sue and be sued for recovery of prop-

erty.

1583. May maintain actions for waste, conversion, and tres

pass.

1584. Executor and administrator may be sued for waste or trespass of decedent.

1585. Surviving partner to settle up business. Interest therein to be appraised. Account to be rendered. 1536. Actions on bond of executor or administrator may be brought by another administrator.

1587. What executors are not parties to actions.

1588. May compound.

1589. Recovery of property fraudulently disposed of by tes

tator.

SECTION 1590. When executor to sue, as provided in preceding

section.

1591. Disposition of esiate recovered.

The executor or administrator Executors
to take
of the

estate.

1581. (§ 194.) must take into his possession all the estate of the possession decedent, real and personal, and collect all debts due entire to the decedent or to the estate. For the purpose of bringing suits to quiet title, or for partition of such estate, the possession of the executors or administrators is the possession of the heirs or devisees; such possession by the heirs or devisees is subject, however, to the possession of the executor or administrator, for the purposes of administration, as provided in this Title.

NOTE.-Stats. 1861, p. 643, Sec. 70.

1. POSSESSION OF THE ESTATE.-See Secs. 1358,
1384, 1385, and notes, Civil Code Cal. These sections
are quoted at length in note to Sec. 1516, ante.

2. THE REAL ESTATE, at common law, vested in
the heir, the personal estate in the administrator; but
under our system the true theory would seem to be
that both real and personal vest in the heir, subject to
the lien of the administrator for the payment of debts
and the expenses of administration, and with the right
in the administrator of present possession.-Beckett vs.
Selover, 7 Cal., p. 238; Gregory vs. McPherson, 13 id.,
p. 562. In Harwood vs. Mayre, 8 Cal., p. 580, the
Court say:
"The plaintiff seems to have proceeded
under the idea that the heir was the only person inter-
ested in, or capable of exercising control over, the real
estate of the deceased. This doctrine never obtained
in California.
The administrator, being
entitled to the possession of the real property, must be
made a party to all suits affecting it."

3. CHATTELS.-The executor holds as trustee for the
purposes of the will, but he holds the legal title in all
the chattels of the testator. He is, for the purposes of
administrating them, as much the legal proprietor of
those chattels as the testator himself while alive. The
Ordinary has no power to transfer them. His grant
can pass nothing; it conveys no right-it is a void act.
Such was the substance of the language of Marshall,
C. J., in the case of Griffith vs. Frazier, 8 Cranch., p.
8; and given by Burnett, J., in Haynes vs. Meeks, 10
Cal., p. 119.

4. SUITS.-The administrator is the proper party

T

plaintiff in a suit to quiet title. By the law of this State, all property of the deceased, real and personal, remains in possession of the administrator until administration of the estate is had, or a decree of distribution is made by the Probate Court.-Curtis vs. Sutter, 15 Cal., p. 264,; see subd. note "Generally."

5. THE HEIRS may now bring such suit, by the amendment embodied in Sec. 1452, ante (to accord with Meeks vs. Kirby, January Term, 1872). When no administration is had, the heir has the right of entry, and "may maintain" an action of ejectment. His right of entry is subject only to the claim of the administrator, when there is one.-Updegraff vs. Trask, 18 Cal., p. 459. The right of possession by the administrator is statutory, and does not apply to cases existing prior to its passage.-Soto vs. Kroder, 19 Cal., p. 96. A tenant in common is entitled to the whole tract, where entitled to an undivided portion.-Touchard vs. Crow, 20 Cal., p. 162. In this case, the tenant in common was represented by the administrator.

6. WHEN IT CEASES.-This right of possession exists till the estate is settled or turned over to heirs by order of the Court.-Meeks vs. Hahn, 20 Cal., p. 627. By the amendment embodied in Sec. 1453, ante, the heir may obtain possession at the end of ten months in certain cases, though the estate is not fully settled.-See the Broderick Estate case, Magraw vs. McGlynn, 26 Cal., p. 429; referring to Fair vs. Newman, 4 Term Rep., p. 645; and Tif. & Bul., "Trusts and Trustees," p. 483.

7. COMMUNITY PROPERTY.-See Jewell vs. Jewell, 28 Cal., p. 232. Gift of property by widow, prior to delivery of it to her by the administrator, considered in Jahns vs. Nolting, 29 Cal., p. 513. Such gift held not to pass property.

8. PARTNERSHIP MATTERS OF DECEDENT.-Griggs, administrator, vs. Clark, 23 Cal., p. 427; Gleason, vs. White, 35 Cal., p. 264; see note to Sec. 1585, post. Interest.-If the administrator does not keep the funds of the estate separate, but uses them for his own purposes, he is chargeable with interest.-Est. Gasq, October Term, 1871.

9. STATUTE LIMITATIONS.-See Gleason vs. White, 35 Cal., p. 264. The claim must be presented within ten months after it becomes absolute.

10. GENERALLY.-The right to possess the personal property, by the administrator, is the same at common law. The real estate is assets, if required, and not otherwise.Estate of Woodworth, 31 Cal., p. 605.