EDWARD E. CHEVER et al., Respondents, v. CHING HONG POY et al., Respondents, and WILLIAM J. CHEVER, Appellant, 82 Cal. 68

McFarland, J. This action was brought against certain Chinese tenants to recover rent for certain land, and against William J. Chever, who claims a certain interest in the land and rent, and who was made a defendant because he refused to join as plaintiff. The Chinese defendants paid the rent due into court; and the only matter in controversy is the right to a certain one fifth of the rent which is claimed by both plaintiff and defendant William J. Chever.

The court first decided the issue in favor of said defendant, but afterward granted a new trial; and from the order granting the new trial the said defendant William J. Chever appeals. The plaintiff Edward E. Chever sues in his own right, and also as administrator of his deceased mother, Lydia D. Chever; and it is in his capacity as such administrator that he claims the said one fifth of the rent. The facts are, that James W. Chever, who was the father of plaintiff and defendant, died seised of the land in question in the year 1857. He left surviving him bis widow, Lydia D.

Chever, and five sons, viz.: Edward E. (the plaintiff), David A, George F., Charles G., and the defendant William J. Chever. He left a will, in which he devised all his property to his widow, Lydia D., during her widowhood, with a proviso that if she should marry again it should immediately go to his said children in equal proportions. As she did not marry, the effect of the will was simply to give her a life estate in the property, without further disposition of it, leaving it to go, after her life, according to the law of descents.

Afterward, on May 10, 1860, but before the settlement of the estate of the deceased father, the defendant herein, William J. Chever, duly executed to his mother, the said Lydia D., a deed in which he did “give, grant, sell, devise, release, and forever quitclaim,” to said Lydia D., “ all his right, title, and interest in and to ail the real property .... which might be coming to the said William J. Chever, as heir at law of said James W. Chever, deceased”; and further covenanted to warrant and defend the same to said Lydia D., her heirs and assigns, forever, etc. His interest at that time was one fifth.

Afterward, and prior to April, 1878, the said brother George F. Chever died unmarried, without issue, and intestate. On April 8, 1878, on the petition of the administrator of the said father, James W. Chever, a decree was entered in the probate court distributing the land described in the complaint to the said widow, Lydia D. Chever, during her widowhood, and afterward in equal proportions to the surviving sons, Edward E. (plaintiff herein), David A., Charles G., and the defendant William J. Chever. Afterward, — on. January 15, 1883, — Lydia D. died, and plaintiff is her administrator.

"Upon this state of facts the contention of appellant is, that, notwithstanding his said deed to his mother of May 10, 1860, by which he conveyed to her all his right and title to the property, the subsequent decree of distribution entirely destroyed the effect of that deed, and conclusively established the title in appellant as of the date of the decree. The contention of respondent is, that the title vested in appellant on the death of his father by operation of law, and passed by the deed to his mother.

And we think that the view of the question taken by respondent, and adopted by the court below, is the correct one.

Section 1666 of the Code of Civil Procedure provides that a decree of distribution “is conclusive as to the rights of heirs, legatees, or devisees ”; but it is conclusive against them only as heirs, legatees, or devisees, — only so far as they claim in such capacities. The probate court has jurisdiction to determine who are the legal heirs of a deceased person who died intestate, and who are the devisees or legatees of one who died testate; but its determination of $uch matters does not create any new title; it merely declares the title which accrued under the law of descents or under the provisions of the will.

The decree of distribution has nothing to do with contracts or conveyances which may have been made by heirs, devisees, or legatees of or about their shares of the estate, either among themselves or with others; such matters are not before the probate court, and over them it has no jurisdiction. An heir may contract about or convey the title which the law had cast upon him on the death of his ancestor; and the validity or force of such contract is not affected by the fact that a probate court afterward, by its decree of distribution, declares his asserted heirship and title to be valid.

Section 1678, invoked by appellant, applies particularly to cases of “ partition" between heirs or devisees, where commissioners are appointed to make division, etc.; and merely gives the right to a grantee of an heir or devisee to have the share of his grantor set off to him. Whether, even in such a case, the probate court would have jurisdiction to hear and determine a contested issue between an heir and alleged grantee, when the former denied the right of the latter, or whether it was intended to apply merely to admitted claims, is a question which need not be answered here.

It is clear that on rendering ordinary decrees of distribution probate courts deal only with issues and parties legitimatety before them. In opposition to these views appellant cites Freeman v. Rahm, 58 Cal. 114. It is not very clear what principles were intended to be determined in the leading opinion in that case, or if they would be applicable to the case at bar. At all events we cannot hold that that case rules this one differently from the conclusion herein reached. "Views opposite to those claimed to be stated in Freeman v. Rahm are expressed in Theller v. Such, 57 Cal. 447; Bath v.

Valdez, 70 Cal. 350; and Bernard v. Wilson, 74 Cal. 512. Order appealed from affirmed. Thornton, J., and Sharpstein, J., concurred. Hearing in Bank denied.