McPike v. Mehrmann
Before: Kerrigan
Synopsis
Statutory Proceeding by Husband to Determine Vesting op Community Property in Name op Deceased Wipe—Representatives op Deceased Wipe not Concluded in Partition.—A statutory proceeding, under section 1723 of the Code of Civil Procedure, to have it determined that real property standing in the name of the deceased wife was community property which vested in the husband at the time of her death, does not constitute a conclusive adjudication against the representatives of the deceased wife, who were in the possession of the property, and were not parties thereto, and were not before the count, so as to give it the effect of an equitable decree as against them; and it may be shown by them in a subsequent action for partition, in which the representatives of the deceased wife and of the deceased husband are before the court, that the property was the separate property of the wife, and it may be so found and adjudged by the court.
Id.—Purpose of .Statutory Proceeding—Conditional Effect of Decree.—The statutory proceeding taken under section 1723 of the Code of Civil Procedure is only intended as a means to have it determined that a person is dead, upon whose death the asserted right of another person depends, and not to have the validity of that right conclusively adjudicated. The decree in the proceeding, as respects persons not parties, merely determines conditionally that if the party petitioning has any asserted right or title accruing on the death of another person, such right or title has accrued.
KERRIGAN, J.
This is an appeal by plaintiff from a judgment against him and from an order denying his motion for a new trial, in an action for the partition of certain real property.
January 20, 1906, Olive Coulson died, leaving a last will and testament, which was duly admitted to probate, and Allen Small qualified as executor thereof. At the time of her death the three parcels of real property, the subject of this controversy, stood of record in her name, and she left as her surviving spouse Robert Coulson. September 26, 1906, Robert Coulson filed a petition under the provisions of section 1723, Code of Civil Procedure, and after ten days’ notice by publication in a daily newspaper a hearing was had, and the court made its decree, adjudging that the property here
[503]
involved was community property,' and vested absolutely in Robert Coulson, as the surviving spouse of Olive Coulson, upon her death. The executor of the estate of Olive Coulson, deceased, although in possession of the property at the time, received no personal notice of said proceedings, and consequently did not appear therein.
September 6, 1906, Robert Coulson made and executed a deed to an undivided one-third of said real property to the plaintiff herein. Subsequently Robert Coulson died, leaving a will, and Frank McMann was appointed executor of his estate. November 8, 1906, this action was commenced against the estate of Olive Coulson and against the executor and devisees under the will of Robert Coulson, the plaintiff alleging the ownership of the property to be exclusively in himself and in the estate of Robert Coulson as tenants in common, and praying for a partition thereof.
All the defendants except the executor of the estate of Olive Coulson, deceased, filed answers admitting the allegations of the complaint. Said executor filed an answer, denying that the plaintiff was the owner or holder of any estate in said real property, and setting up that the estate of Olive Coulson, deceased, was the owner in fee simple and in possession thereof.
During the pendency of the cause Allen Small, the said executor, died, and H. B. Mehrmann, being appointed administrator of the estate of Olive Coulson, deceased, was substituted in his place as defendant.
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