[No. 15869. In Bank.-April 13, 1896.]

IN THE MATTER OF THE ESTATE OF STEPHEN POWELL BURDICK, DECEASED.

ESTATES OF DECEASED PERSONS-SETTLEMENT OF ACCOUNT OF EXECUTOR— TRUST FUNDS-DISTRIBUTION-REVIEW ON APPEAL.-Upon an appeal by an executor from a decree of distribution, "except so much of said decree as settles the account of said executor," the settlement of the account which determines how much remains in the hands of the exec. utor belonging to the estate cannot be considered upon the appeal, and the question whether the balance remaining in his hands consisted of trust funds not belonging to the estate must be considered as determined by the probate court, in the exercise of its jurisdiction, in the settlement of the account as between the executor and those claiming the estate, and any error in such determination could only be reviewed upon appeal from the decree settling the account, and cannot be reviewed merely on appeal from the decree of distribution.

ID. JURISDICTION OF PROBATE COURT-ADVERSE CLAIM-STAY OF PROCEEDINGS.—The probate court has no jurisdiction to determine the rights of those claiming adversely to the estate; but if serious questions arise upon such claims, the court may delay the final decree until they can be determined in another forum. ID.-DUTY OF EXECUTOR-REMEDY FOR IMPROPER CHARGE-COMPROMISE WITH TRUSTEES.-Where a serious question exists as to whether money in the hands of the executor belongs to the estate or to trustees, theexecutor should take steps to determine the right, and if he is improperly charged with funds not belonging to the estate, his only remedy is to appeal from the decree settling his account; but if he claims that the property is assets of the estate, it is his duty to get it for the estate, and he has no right to compromise the claim of the estate by consenting that the trustees shall have the money, provided they shall pay the debts and expenses of administration out of it; nor can he, after administering upon it, turn the surplus over to the trustees. ID.-CONSTRUCTION OF CODES.-The codes are in pari materia, and must be construed as one.

ID. INTEREST OF WIFE IN COMMUNITY PROPERTY. --The legal title to the community property is in the husband, and the wife has no right or title to any specific property, but only what may remain upon a disso. lution of the community, otherwise than by her own death, and this interest cannot be classified as any species of estate known to the law. ID.-ADMINISTRATION OF COMMUNITY PROPERTY-DISTRIBUTION TO WIFESUCCESSION-JURISDICTION.-The probate court has jurisdiction to ad minister upon the community property, as part of the estate of the husband, and the wife takes her interest in such property by way of succession from the husband, and through distribution of his estate. ID.-APPEAL BY TRUSTEES-DISMISSAL.-Trustees who claim funds in the hands of the executor adversely to the estate, who have not presented any claim against the estate, are not parties aggrieved by a decree distributing the funds to the heir.

ID. REFUSAL TO POSTPONE DISTRIBUTION-NONAPPEALABLE ORDER. —An order refusing to suspend or postpone a decree of final distribution is not appealable.

APPEALS from a decree of final distribution, from an order refusing to suspend the decree of distribution, and from an order denying a motion for distribution to trustees. JOHN ELLSWORTH, Judge.

The facts are stated in the opinion of the court.

J. H. Craddock, for Arthur W. Burdick, and A. M. Sutton, surviving trustees, and Arthur W. Burdick in his own right, Appellants.

It was both the contractual and legal duty of the executor to return to the trustees the residue of the trust funds in his hands after settlement of his account, without any order of the court. (1 Story's Equity Jurispru dence, secs. 533, 534; Perry on Trusts, secs. 15, 346; Trecothick v. Austin, 4 Mason, 16; Attorney General v. Brigham, 142 Mass. 248; Lathrop v. Bampton, 31 Cal. 25; 89 Am. Dec. 141; Pfister v. Wade, 56 Cal. 43; 3 Pomeroy's Equity Jurisprudence, secs. 1322-27.) The court having obtained jurisdiction of the fund for the purposes expressed in the stipulation, and these purposes having been fully subserved, its only remaining duty in the premises was to direct the return of the residue to the trustees in accordance with the stipulation, as "the persons entitled thereto," not as distributive assets of the estate, but as trust funds coming to its jurisdiction earmarked with the character of a trust. (In re Haas, 97 Cal. 232, 235.) On distribution the probate court must, of necessity, examine into the title to the extent of ascertaining in whom the prima facie legal title is vested. (Code Civ. Proc., sec. 1665; Estate of Burton, 64 Cal. 428.) The court should, at least, have suspended its decree of final distribution until such reasonable time as that the title to the residue of the funds in the hands of the executor could be tried and determined in a court of competent jurisdiction, "care being

exercised that all parties interested should be fairly and fully represented at the trial." (In re Haas, supra.)

R. S. Gray, for Appellant Charles N. Fox, Executor. Distribution cannot be made to persons claiming adversely to the estate. The question of title must be determined by action on behalf of or against the executor. The estate as distributed must go to the heirs or legatees or devisees, or some of them, or those holding under them, and the decree is only conclusive as to the rights of the heirs, legatees, or devisees, as such, and, as to them, subject only to be set aside, modified, or reversed on appeal. (In re Rowland, 74 Cal. 525; 5 Am. St. Rep. 464; Chever v. Ching Hong Poy, 82 Cal. 71.) Surviving spouse claiming alleged community property does not claim under or through the estate, but adversely thereto. Even in a proceeding regularly taken under section 1664 of the Code of Civil Procedure, the court would have no jurisdiction to determine a question of title as against one claiming adversely to the estate. (Chever v. Ching Hong Poy, supra; In re Burton, 93 Cal. 461; Theller v. Such, 57 Cal. 447; Bath v. Valdez, 70 Cal. 350; Barnard v. Wilson, 74 Cal. 512.) The alleged title of Alice H. Burdick and of the trustees were each of them adverse to the title of the deceased, and neither was within the jurisdiction of the superior court sitting in probate. (In re Haas, 97 Cal. 232.) If the executor has come into possession of the trust fund, or its substitute, so that the same can be identified, he can be held to account, and charged as a trustee, and the relationship of trustee will be added to that of executor. (Lathrop v. Bampton, 31 Cal. 17; 89 Am. Dec. 141.)

Rodgers & Paterson, amici curiæ.

Sections 1383 to 1400 of the Civil Code do not apply to the community property. The wife does not acquire her right of absolute property in one-half of the community property, upon the death of the husband, by

inheritance. (Civ. Code, secs. 172, 1402.) The expression, "the property of one who dies without disposing of it by will," assumes imperatively that the property referred to is property which he might have disposed of by will. (Civ. Code, secs. 1383, 1384, 1386.)

TEMPLE, J.-December 12, 1892, the executor of the above estate filed his final account, and prayed for a settlement thereof, and for a distribution. The bill of exceptions stated "that by said final account it appeared that, after payment in full of all claims against the said deceased and said estate, the expenses of the last sickness and all funeral charges, and all accrued expenses and charges of the administration of said estate, there remained in the hands of said executor a balance in money of eighteen hundred and fifty-five dollars and forty-one cents, from which said executor asked to be allowed a reasonable attorney's fee, to be fixed by the court, together with such further expenses of administration as might thereafter accrue, and that the balance be distributed to the parties entitled thereto." The bill of exceptions then proceeds to give an extract from the petition accompanying the final account, in which, among other things, it is stated, in substance, that the executor found a deposit in a certain bank to the credit of Stephen Powell Burdick, as attorney, five thousand dollars of which was claimed by Arthur W. Burdick and A. M. Sutton, as trustees; that the bank, upon demand, refused to pay the same to the executor; that thereafter the claimants executed a certain paper, the contents of which are given, and then the executor was permitted to take the money. A decree was entered settling the final accounts of the executor, and finding that he had in his hands, subject to distribution, the sum of sixteen hundred and fifty-seven dollars and ninetyfour cents. A decree was thereupon entered distributing said money as community property, one-half to Alice H. Burdick, widow of the deceased, and one-half to Arthur W. Burdick, who was sole legatee of deceased;

or, rather, at the request of said Arthur W. Burdick, to certain trustees for his benefit.

Appeals are taken from the decree by the executor, by Burdick and Sutton, as trustees, and by A. W. Burdick individually.

The executor appeals, as he states in his notice, from the whole of the decree, "except so much of said decree as settles the account of said executor, from which lastnamed portion he does not appeal."

The claim of the trustees to the five thousand dollars was set out by the executor in the petition accompanying his final account, but, so far as the bill of exceptions shows, no action was asked in regard thereto. But if action had been solicited in regard to it, I do not see how it could affect the matter here, for the executor has not appealed from the decree which settles his final account and determines how much remains in the hands of the executor belonging to the estate. This determination was clearly within the jurisdiction of the court. That decree is not before us on this appeal, and whatever errors we may suppose were committed by the probate court in reaching the conclusion, we cannot interfere with it. To attempt to do so would be an arbitrary proceeding without authority.

The probate court has jurisdiction as between the executor and those claiming the estate to determine what belongs to the estate. This is implied in the power to settle the final account, and, by its decree, determine what remains in the hands of the executor to be distributed. Still, since the probate court has no jurisdiction to determine the rights of those claiming adversely to the estate, if serious questions upon such claims arise, the duty of the court might be to delay the final decree until such claims can be determined in another forum. Where there is in the hands of the executor money which the executor claims does not belong to the estate, he should himself take steps to test the right, if serious question exists; and, if he is improperly charged, his remedy is to appeal from the decree settling his