Berry v. Eyraud

TEMPLE, J.

—Appeal from an order refusing a temporary injunction.

The plaintiffs are lessees of a tract of land in Kern County. The land belonged, in equal shares, to Andre Castagnetto, B. W. Jauchins, and the estate of Joseph Queirolo, then recently deceased. At the time of the execution of the lease under which plaintiffs claim, the estate was not in probate. The heirs of Joseph Queirolo were one son and two daughters, all over the age of majority. The lease was executed by Jauchins, Castagnetto, and C. A. Queirolo, son of Joseph Queirolo, but not by the daughters of Joseph Queirolo.

[83]

Subsequently to the lease, April 17, 1899, letters upon the estate of Joseph Queirolo were issued to C. A. Queirolo. There was evidence before the court that notice to" creditors had been duly given, that there were no debts, and that the estate was ready for settlement and distribution, if the parties interested desired that the administration should be closed.

The land was leased as oil-land, and plaintiffs were proceeding to mine for oil, when the defendants entered and set up a saloon, claiming under a lease made by the two daughters of Joseph Queirolo, deceased, who had not joined in the lease to plaintiffs. The defendants have not disturbed the plaintiffs in their operations, except that it is charged that the existence of the saloon on the premises is a constant menace and danger to the oil-tanks and other property of plaintiffs, which is quite inflammable.

Neither party claims under the administrator, nor has the probate court authorized a lease to be made by him. As against strangers, the right of the heir to the possession of lands belonging to the estate has been expressly recognized. (Code Civ. Proc., secs. 1452,1581;

Spotts

v.

Hanley,

85 Cal. 155;

Jordan

v.

Fay,

98 Cal. 264;