PEDRO ANTONIO ABILA v. ROBERT BURNETT, 33 Cal. 658

By the Court, Sanderson, J.: This was an application to the Probate Court' of Los Angeles County by an executor for an order authorizing him to sell real property belonging to the estate of his testator, for the purpose of satisfying a claim in his own favor for services and expenses as executor.

Accompanying his petition as an exhibit is what purports to be an account of his transactions, showing, if correct, an indebtedness in his favor; but the case shows that the account had never before been presented or allowed and settled by the Court, and that no notice was given in the citation to parties in interest that said account would be considered at the time designated for the hearing of the application to sell. At the hearing the order was granted, and the appellant claims that the order was premature for the reason above suggested. In this we think the appellant is mistaken.

We find nothing in the statute which makes it necessary that an account of the executor’s transactions should be rendered and a final adjudication be had upon it before the Court can make an order for a sale of the real estate to meet the expenses of administration. The law of the question is found in sections one hundred and fifty-four and one hundred and fifty-five of the Probate Act,-and we see nothing in them to that effect. He is not required to show a settled account or allowance before he can sell to meet expenses.

This is put beyond cavil by the provision requiring him to estimate and set forth in his petition the expenses already incurred and what may accrue subsequently, which provision is in all respects inconsistent with the theory of the appellant. It is only necessary that the executor should show by his petition a legal necessity for a sale in the mode prescribed in the one hundred and fifty-fifth

section of the Act in question, and if, upon investi■gation, it turns out that such necessity exists in fact, the Court may order a sale, on its appearing that the proper notice or citation has been given to all concerned in the proceeding.

We therefore agree with counsel for the appellant that the proceedings of the Court, so far as they may purport to be, if at all, a final settlement or adjudication upon the account of the petitioner, go beyond the present purpose, and cannot, therefore, be regarded as final and conclusive upon the contestants; but while this may be so, we are unable to perceive in what respect the contestants are prejudiced. All the Court had power to do in this proceeding was to ascertain, first, whether there was a legal necessity for a sale; and second, how much land ought to be sold.

The finding that the estate was indebted to the executor in a certain sum on account of expenses incurred in the course of administration must be understood merely as a definite mode of finding a legal necessity for a sale and as having no further effect.

In ascertaining the condition of the estate, with a view to the question presented by the petition, one half of the personal estate, inventoried at two thousand nine hundred and ninety-seven dollars and sixty-two cents, was deducted from the assets in the hands of the executor, as shown by the inventory, upon the ground that the property had been delivered to the widow of the testator and co-executrix of the petitioner, by- virtue of an qrder of the Court to that effect, and, as claimed now by petitioner, pursuant to the will.

So far as that order is concerned, it must be regarded as a nullity, for no notice or citation to parties interested in the estate, except the petitioner, was given. Xo distribution of the estate prior to final settlement by administration can be had, except as provided in

Chapter XI of the statute. Xo such steps were taken. The movement seems to have been made upon some theory which finds no sanction in the statute. Xor does it make any difference in the result if we concede that the widow was entitled, as widow, to the property under the will, as a specific devise even, for even specific devises may not be exonerated from the payment of debts and expenses of administration (Sees. 180-81); but if it was a specific devise, no resort to it for that purpose could he had until the residue of the estate not so devised had been exhausted.

The widow could not, therefore, take it as widow or devisee, hut it must he considered as having gone into her possession as co-executrix, and, if in esse, as, still constituting a part of the estate, and if not, as chargeable against her in her account with the estate as executrix. As executrix, she was as much entitled to the possession of the property as the petitioner, and it having gone into her possession, he is not chargeable with it. (Hope v.

Jones, 24 Cal. 92.) ¡Notwithstanding her death, the property still belongs to the estate, with its increase, and subject to administration, and the petitioner is entitled to its possession, if possession can be had. If, however, the property has become lost to the estate the petitioner is not to be held responsible for it, for he is not responsible for the acts of his co-executrix in which he may have taken no part.

So far as the facts are developed by the record, he was not liable or responsible for the property up to the time of her death, for in no just sense had it ever come into his possession, and he was not bound to look after it while in the possession of his co-executrix, who had equal right with himself, and must be presumed to have been equally responsible.

Being personal property, if still in existence, it must be used in the payment of expenses before resort is had to the real estate, unless it was a specific devise under the will, in which case it cannot be taken for that purpose if there is other sufficient property. (Wood-worth's Case, 31 Cal. 595.) There is nothing, however, in the will in the nature of a specific devise. (See case last cited.) Under the will she took all she took subject to administration, that is to say, one half of what might remain after the payment of debts and expenses of administration.

It follows that the Court erred in considering the personal property delivered to the widow—being one half of the cattle belonging to the testator at the time of his death—as no longer constituting a part of the estate. They are a part of the estate, and must be sold before a resort to the land can be had, and must therefore be taken into account in determining the necessity for any sale of the latter. The Court, however, did not err in treating the costs of litigation over the will as a charge in favor of the executor.

It is true that, had he taken the proper course, those who contested the will, if solvent, could have been made to pay a portion of those costs; but the mistake of counsel as to a matter of practice not then settled cannot be allowed to charge the executor with such laches as to make him personally responsible. The estate is open and unsettled, and the Statute of Limitations has no application. It is impossible to say, from the record, what is the present condition of the property and its increase which went into the hands of the deceased executrix.

When taken into account, it may be unnecessary to sell the real estate. We therefore reverse the order and remand the case for further proceedings. Ordered accordingly.