Lane v. Starkey

LANGDON, P. J.

This is an appeal by the defendants from a judgment against them in an action to quiet title to real property in Mendocino County, California.

The case was tried upon an agreed statement of facts, from which it appears that Charles H. Starkey, the former husband of defendant Mrs. G. T. Starkey, died in the county of Mendocino on September 6, 1904. Pie left an estate therein consisting of certain personal property, and there was also standing of record in his name at the time of his death certain real property, being the same property de

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scribed in the complaint herein, upon which he was living at the time of his death.

The said decedent left as his heirs at law Mrs. G. T. Starkey, his widow; Marshall Ney Starkey, one of the defendants herein, a minor son, who was at the time of the filing of the complaint herein of the age of eighteen years and appeared by his guardian; Elizabeth Margaret Starkey, a minor daughter, who died in February, 1918, at the age of eighteen years, and whose interest herein is represented by the administrator of her estate; and Hazel Gertrude Starkey, a minor daughter, who died in March, 1914, at the age of twelve years, and whose interest herein is also represented by the administrator of her estate.

On October 5, 1904, Mrs. Starkey filed her petition to be appointed administratrix of the estate of her deceased husband, and thereafter, on October 17, 1904, an order was duly made and entered that she be appointed administratrix of said estate and that letters of administration issue to her upon her taking the oath and filing a bond according to law in the sum of $500. Thereafter, and on the twentieth day of October, 1904, a bond was filed in the sum prescribed, signed by Mrs. Starkey and B. Edwards and A. H. Ewert. The said sureties failed to justify on said bond in the following particular: There does not appear on said bond the name of any notary or person authorized to administer oaths, nor the seal of such officer or person. It does not appear on said bond or in the records in said probate proceeding that said bond was ever approved by any judge or other person authorized to approve the same. On October 20, 1904, Mrs. Starkey took the oath as administratrix and letters of administration were issued to her by the clerk of the court. Appraisers of said estate were appointed according to law and an inventory and appraisement returned and filed on October 24, 1904. The real property involved in the present action was not returned in the inventory as a part of said estate,. the only property appearing in the inventory being personal property of the appraised value of $143.50. The inventory was not sworn to by the administratrix.