In re Estate of Rowland

Searls, C. J. This is an appeal from a final decree of the superior court distributing the estate of Jane Rowland, deceased, and denying the petition of appellant, the surviving husband of deceased, to have certain money and property in the hands of the executors, declared community property of petitioner and deceased, segregated from the separate property of the testatrix, and delivered to him, instead of being distributed to the legatees under the will.

It appears from the petition of the appellant, to which a demurrer was interposed and sustained, that in 1867 the petitioner and testatrix, who were husband and wife, by an agreement between themselves, divided their community property; that twelve thousand dollars of such property was in the hands of the testatrix, and was not divided, owing to the fact that petitioner supposed it was required to pay off certain claims against the common property.

The property thus divided and thereafter held by the parties in severalty as their separate property was sold in 1879 for one hundred and eighty-five thousand dollars, and thereupon an accounting was had between the parties, in which petitioner claims the testatrix was improperly allowed five thousand dollars on account of alleged expenses incurred" by her as the agent of petitioner in and about his property. He now claims these amounts with interest, amounting in the aggregate to thirty thousand dollars, as community property, to which he was entitled upon the death of his wife.

Deceased left a will, which was duly admitted to probate, whereby her property was disposed of, and in which petitioner was a legatee to the extent of one dollar.

It is made the duty of the probate court, or the supe[525]rior court acting as such, to distribute the estate of deceased persons, when ready therefor, to the heirs, legatees, and devisees, as the case may require and as provided by law; so, too, debts and demands against the estate may be ascertained, determined, and paid as provided by statute.

’ The law does not contemplate or provide for the distribution of property or money in the hands of the executor or administrator to persons who may claim adversely to the estate, but leaves all such questions to 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 to some of them, or those holding under them, and the decree, when made, is conclusive as to their rights, subject only to be set aside, modified, or reversed on appeal. (Code Civ. Proc.) sec. 1666.)