Ryer v. Fletcher Ryer Co.

THE COURT.

—This action was brought by plaintiff, as administratrix of the estate of William T. S. Ryer, deceased, against the defendant corporation for the purpose of having the lands described in the amended complaint partitioned according to the respective rights of the plaintiff as such administrator and of defendant corporation.

A demurrer was interposed by defendant to the amended complaint, and overruled. The defendant then answered, and after trial an interlocutory judgment or order was entered ordering the property to he partitioned in certain proportions, and appointing referees to make such partition. The defendant

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has appealed from said interlocutory judgment. The first point urged is, that the court erred in overruling the demurrer to the amended complaint. The question for determination here is as to whether the administratrix of the estate of deceased, in her representative capacity, can maintain an action for the partition of real estate owned by deceased at the time of his death .as tenant in common with defendant. Partition under our code is a special statutory proceeding.

(Waterman v. Lawrence,

19 Cal. 218; 79 Am. Dec. 212;

Gates v. Salmon,

35 Cal. 597; 95 Cal. 276.)

We must, therefore, look to the statute for the authority to bring the action. It is provided in our code (Code Civ. Proc., .sec. 752): “When several cotenants hold and are in possession of real property as parceners, joint tenants, or tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for years, an action may be brought by one or more of such persons for a partition thereof,” et cetera.

The plaintiff is not one of the parties named in the statute. She is not a cotenant either as parcener, joint tenant, or tenant in common. The code (Code Civ. Proc., sec. 1675 et seq.) provides that in probate proceedings “when the estate, real or personal, assigned by the decree of distribution to two or more heirs, devisees, or legatees, is in common and undivided, and the respective shares are not separated and distinguished, partition ■or distribution may be made,” et cetera, but the proceeding in this case is not claimed to be under the authority given by this section of the code, and in fact is not a proceeding in the estate, but an action in the superior court for partition. We look in vain for any authority to bring such action, and our attention has been called to none. The estate of a* deceased vests immediately upon his death in his heirs or devisees, subject, of course, to the pajonent of his debts. The administrator is entitled to the possession of the estate for the purposes of administration. It is his duty to preserve it and distribute it as the court may direct. He may, for certain purposes named in the statute, sell either the real or personal property by order of the court first obtained. He cannot represent either side in a contest between heirs, devisees, or legatees. He should perform his duty, preserve the estate, pay the debts, and turn over the property to