at the head of the family in place of the father, is their natural guardian, and, until one is appointed, is entitled to the custody and control of her children's property; and, in case of injury to her children, either by assault, death, or otherwise, she has the right of recovery on account thereof.(a) If her child or children have property, she is entitled to be their guardian on giving the bond required by the probate court. She has the right to administer upon her husband's estate; and if named as executrix in her husband's will, is entitled to act as such. She is entitled to one half the homestead, and the children to the other. If in an incorporated town or city, she is entitled to a house and lot worth not over five thousand dollars, to be by her selected; if not living in an incorporated town or city, then twenty acres of land, with the dwelling-house situated thereon, together with the personal property exempt from execution, if the husband had that amount at his death. At the death of the husband, the widow, for herself and children, is entitled to a reasonable support, until the administration of the estate; the allowance to be made by the probate court. If the deceased did not have the amount of property exempt from execution, then the court, on the coming in of the inventory, is to make a further allowance to the widow for herself and children, for their maintenance during the progress of the settlement of the estate, which is not, in an insolvent estate, to be longer than one year. Where the estate of the husband is inventoried, and, by the inventory, does not amount to more than five hundred dollars, then the whole estate belongs to the widow and children, subject to the payment of the funeral charges, and expenses of the administration; and, in that event, the court, by a decree, is to assign the same to her; which settles the estate. Where, however, the widow has, in her own right, an income from her separate property, equal to the allowance to be made her and her children, then the whole is to go to the children. Where the estate of the husband after settlement proves to be more, the balance is to be divided between the

(a) 2 California Statutes, 52.

widow and children, a moity to the widow and the other to the children. Where the children are the husband's by another woman, the rule is the same. Where the husband left no children or grandchildren entitled, from him and his estate, to support, the widow alone is entitled to the provision for maintenance, the property exempt from execution, the homestead, and amount of the balance of estate, after payment of debts and expenses of settling the same, except the individual property of the husband, owned by him before marriage.

A widow that shall marry, loses the right to administer upon her husband's estate; or, having administered, her powers as such, from the time of the second marriage, ceases; also, her right to the guardianship of her children having property, but not to their control, tuition, and protection, and the rights to bring suit for any injury to them, while minors.

If, on the death of a father, he should have no widow, but have children, then the children are entitled to the provision for maintenance, the property exempt from execution, the homestead, and residue, after payment of debts and expenses of settling the same.(a)

WIDOWER.

The only right which the husband has, upon the death of his wife, is to administer upon her estate, if she have any, and not disposed of by will, and another named as executor.(b)

(a) 1 Cal. Stat., 219; 2 Cal. Stat., 448; 2 Cal. Stat., 462, 463, 296.

(b) 2 California Statutes, 454.

CHAPTER VIII.

THE RIGHTS OF PERSONS TO PROPERTY.

The rights that persons have in California are fixed, defined, and guarded by the law.

The rights of persons are to either real or personal property, and those annexed to, or attached to their persons, as citizens of the United States, the state, and the community in which they reside.

The most usual way of acquiring title to personal property is by purchase. This supposes title in the seller.

In all contracts not to be executed within one year, the same must be reduced to writing, and signed by the party bound thereby. All sales of personal property to be delivered after one year, are not binding on the parties unless it is reduced to writing, the consideration named in it, and signed by the parties. And all contracts of sales of property, the prices of which are two hundred dollars or over, are not valid, unless the buyer pays the whole or part of the price, or receives part of the property, or the seller signs a memorandum of the contract at the time of making the purchase. Where, however, property is sold by an auctioneer, the sale is valid, and the contract binds all parties, if the auctioneer enters at the time of sale, in his sale book, a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale is made.

Where a person who has the possession or control of personal property, sells, assigns, or mortgages the same, he must transfer the possession of the property to the buyer, assignee, or mortgagee, and such person must remain in the possession, and not return it, or else the sale, assignment, or

mortgage is not good as against the creditors of the seller, asssignor, mortgagor, or subsequent purchasers in good faith; but it is good as against the seller, assignor, or mortgagor. The conditions named above are those which are such while the property shall remain in the possession of the seller, assignor, or mortgagor. Thus it will be seen, that a person making a purchase of personal property, must take the same into his possession or under his control, to avoid the risk of having it taken by the creditors of the seller, or by a subsequent purchaser in good faith. In taking possession or control of personal property, it must be done in such a manner as to give to the buyer the actual possession or control of the property. Change of possession or control, is what the law requires.

A change of possession is effected where the dominion and control of the property is taken by the buyer away from the seller, as fully aud perfectly as the article of property will admit of at the time.

Where the seller delivers the property sold to the buyer on credit or for cash, or property paid, the transaction is closed, and the title and possession passed to the buyer at one and the same time. Where the contract of sale is made, and the property is in existence, and the seller has nothing more to do to the same, here is a good and binding contract between the seller and buyer. The title and risk of the property is in the buyer after the contract is completed, and the right to the purchase money is in the seller.

The buyer cannot take or sue for the possession of the property, without paying or tendering the contract price. The seller cannot sue for the price without tendering delivery. Where the contract is silent as to the time of delivery, and the sale is on credit to the buyer, the title to the goods and right to their possession vests at once in the buyer, and passes out of the seller on the conclusion of the contract. The price or consideration of the sale is a condition precedent, and must take place before the seller is bound to part with the possession of the property. The seller has a lien on the property for the price thereof, until it is paid, or is by him waived. If the sale is for money, the payment is to