CHAPTER XI.

OF THE PARTITION, DISTRIBUTION, AND FINAL SETTLEMENT
OF ESTATES.

ARTICLE I. PARTIAL DISTRIBUTION PRIOR TO FINAL SETTLEMENT.
II. DISTRIBUTION ON FINAL SETTLEMENT.

III. DISTRIBUTION AND PARTITION.

IV. AGENTS FOR ABSENT INTERESTED PARTIES, DISCHARGE

OF EXECUTOR OR ADMINISTRATOR.

ARTICLE I.

PARTIAL DISTRIBUTION PRIOR TO FINAL SETTLEMENT.

SECTION 1658. Payment of legacies upon giving bonds.

1659. Notice of application for legacies.

1660. Executor or other person may resist application.
1661. Decree prayed for to require bond, which must be
given. May order whole or part of share to be
delivered. Where partition necessary, how made.
Costs.

1662. Order for payment of bond, and suit thereon.

of legacies

upon giving

bonds.

1658. (§ 250.) At any time after the lapse of four Payment mouths from the issuing of letters testamentary or of administration, any heir, devisee, or legatee may present his petition to the Court for the legacy or share of the estate to which he is entitled, to be given to him upon his giving bonds, with security, for the payment of his proportion of the debts of the estate.

NOTE.-Stats. 1861, p. 248, Sec. 85. The rents and profits of the realty coming after the death of the testator are not personal property in the hands of the administrator, within the meaning of the foregoing provisions of the statute, Secs. 1452-1544 (?? 114-163.) Under the statute of descents and distributions, and under the will, if there is one, if not otherwise provided, the entire estate, with its accretions, subject only to the lien of the administrator or the executor for the payment of debts and other purposes of administration, vests in the heirs and devisees immediately on the death of the testator or intestate; hence, if not so required for these purposes, the subsequent rents and profits go to the party who takes the land from which

Notice of application

they issue.-Estate of Woodworth, 31 Cal., p. 618; but see Sec. 1452, and note, ante, and Civil Code, Secs. 1383, 1384, and note; also Sec. 1886, and note; Blair vs. Cisnerous, 10 Texas, p. 34. Where there is no administrator, heir may sue.

1659. (§ 251.)

Notice of the application must be for legacies. given to the executor or administrator, personally, and to all persons interested in the estate, in the same manner that notice is required to be given of the settlement of the account of an executor or administrator.

Executor or other

resist application.

NOTE.-Stats. 1861, p. 248, Sec. 86. See Sec. 1633 (3 233), ante, and note; Est. of Woodworth, 31 Cal., p. 599.

1660. ($252.) The executor or administrator, or person may any person interested in the estate, may appear at the time named and resist the application, or any other heir, devisee, or legatee may make a similar applica tion for himself.

Decree prayed for to require bond.

NOTE.-See Est. of Woodworth, 31 Cal., p. 599.

1661. (§§ 253, 254, 255, 256.) If at the hearing, it appears that the estate is but little indebted, and which must that the share of the party applying may be allowed

be given.

May order whole or part of

to him without loss to the creditors of the estate, the Court must make an order in conformity with the prayer of the applicant, requiring:

1. Each heir, legatee, or devisee obtaining such order, before receiving his share or any portion thereof, to execute and deliver to the executor or administra tor a bond, in such sum as shall be designated by the Probate Judge, with sureties to be approved by the Judge, payable to the executor or administrator, and conditioned for the payment, whenever required, of his proportion of the debts due from the estate, not exceeding the value or amount of the legacy or portion of the estate to which he is entitled;

2. The executor or administrator to deliver to the delivered. heir, legatee, or devisee the whole portion of the

share to be

estate to which he may be entitled, or only a part Where thereof, designating it.

partition necessary, how made.

If, in the execution of the order, a partition is necessary, between two or more of the parties interested, it must be made in the manner hereinafter prescribed. The costs of these proceedings to be paid by the Costs. applicant, or if there be more than one, to be apportioned equally amongst them.

NOTE.-The various requirements to be embodied in the decree of partial distribution, made prior to final settlement, as provided in Secs. 253-256, are embraced in this one section.-See Sparks vs. De la Guerra, 14 Cal., p. 110. Under this section it was held, in Meeks vs. Hahn, 20 Cal., p. 628, that the right to the possession of the realty of an estate remains exclusively in the administrator until the estate is settled, or distribution as directed by the Probate Court. Until then neither the heirs nor their grantees can maintain ejectment for any portion of such property. But the Code (Sec. 1452), as it now reads, permits this action by the heirs.-Estate of Woodworth, 31 Cal., p. 599.

pre- o

Order for

payment of bond,

1662. (§ 257.) When any bond has been executed and delivered, under the provisions of the ceding section, and it is necessary for the settlement thereon. of the estate to require the payment of any part of the money thereby secured, the executor or administrator must petition the Court for an order requiring the payment, and have a citation issued and served on the party bound, requiring him to appear and show cause why the order should not be made. At the hearing, the Court, if satisfied of the necessity of such payment, must make an order accordingly, designating the amount and giving a time within which it must be paid. If the money is not paid within the time allowed, an action may be maintained by the executor or administrator on the bond.

39-VOL. II.

Distribu.

tion of

inade and

to whom.

ARTICLE II.

DISTRIBUTION ON FINAL SETTLEMENT.

SECTION 1665. Distribution of estate, how made and to whom.
1666. What the decree must contain, and is final.

1667. Distribution when decedent was not a resident of this

State.

1668. Decree to be made only after notice.

1669. No distribution to be ordered till all taxes on personal property are paid.

1665. (§ 258.) Upon the final settlement of the estate, how accounts of the executor or administrator, or at any subsequent time, upon the application of the executor or administrator, or of any heir, legatee, or devisee, the Court must proceed to distribute the residue of the estate in the hands of the executor or administra

tor, if any, among the persons who by law are entitled thereto; and if the decedent has left a surviving child, and the issue of other children, and any of them, before the close of administration, have died while under age and not having been married, no administration on such deceased child's estate is necessary, but all the estate which such deceased child was entitled to by inheritance must, without administration, be distributed to the other heirs at law. A statement of any receipts and disbursements of the executor or administrator, since the rendition of his final accounts, must be reported and filed at the time of making such distribution, and a settlement thereof, together with an estimate of the expenses of closing the estate, must be made by the Court and included in the order or decree; or the Court or Judge may order notice of the settlement of such supplementary account, and refer the same as in other cases of the settlement of accounts.

66

NOTE.-Stats. 1865-6, p. 329, Sec. 2. 'Payment of taxes."-Secs. 3639-3642 and 3752, Political Code. Non-resident failing for a year to appear and claim distribution, his share may not be distributed to others.

Pyatt vs. Brockman, Cal., p. 418; see Civil Code,
“Legacies,” Sec. 1357 et seq.; Meeks vs. Hahn, 20
Cal., p. 627; Abila vs. Burnett, 33 Cal., p. 665. On
the distribution it was found that the property of the
estate was insufficient to pay all the legacies in full.
The amount in the executor's hands for distribution was
that which remained after paying the debts. The dis-
tribution was made, and as complained some got more
and others less than that to which they were entitled.
Held: the heirs or legatees, if aggrieved, may appeal,
but the executor is not interested adversely so as to be
entitled to appeal from the order of distribution.-Bates
vs. Ryberg, 40 Cal., p. 465.

1666. (§ 259.) In the order or decree, the Court must name the persons and the proportions or parts to which each shall be entitled, and such persons may demand, sue for, and recover their respective shares from the executor or administrator, or any person having the same in possession. Such order or decree is conclusive as to the rights of heirs, legatees, or devisees, subject only to be reversed, set aside, or modified on appeal.

NOTE.-Stats. 1865-6, p. 765, Sec. 10; Meeks vs. Hahn, 20 Cal., p. 623. Until reversed or modified on appeal, an order or decree of final distribution vests the absolute right and title to the estate so distributed in the distributees.-Estate of Ganaud, 36 Cal., p. 277. The Court may not modify a final decree of distribution or make other disposition of the estate pending an appeal from such order of distribution.-Id. Any of the heirs or legatees may appeal from an order or decree of distribution.-Bates vs. Ryberg, 40 Cal., p. 463.

1667. (§ 259.) Upon application for distribution, after final settlement of the accounts of administration, if the decedent was a non-resident of this State, leaving a will which has been duly proved or allowed in the State of his residence, and an authenticated copy thereof has been admitted to probate in this State, and it is necessary, in order that the estate or any part thereof may be distributed according to the will, that the estate in this State should be delivered to the executor or administrator in the State or place of his