Finnerty v. Pennie

Belcher, C. In January, 1889, Matthew Connors died, owning an undivided one-half interest in certain real property, situate in the city and county of San Francisco, and leaving as his sole heir-at-law his father, Michael Connors. In June, 1889, Michael Connors also died, leaving as his sole heirs-at-law two daughters, Margaret O’Neill and Mary A. Connors. In November, 1889, Thomas Kirkpatrick was duly appointed administrator of the estate of each of the said decedents by the superior court of the city and county of San Francisco, and thereafter he duly qualified and entered upon the discharge of his duties as such.

In May, 1890, the said administrator rendered and filed in court a full account and report of his administration of each of the said estates, and accompanied the same with petitions for the final distribution thereof. These accounts were settled and allowed by the court, and in the matter of the estate of Matthew Connors, on the 16th of September 'following, it was ordered, adjudged and decreed that the undivided one-half of the said real property belonging to that estate be distributed [406]to Thomas Kirkpatrick as administrator of the estate of Michael Connors, “ subject to the claim of the said administrator for the sum of eight hundred and thirty-four dollars and ninety cents, as fixed by the order settling the said account” in the first-named estate. And in the matter of the estate of Michael Connors it was on the same day ordered, adjudged and decreed that the undivided one-half interest in the said real property be distributed in equal shares to Margaret O’Neill and Mary A. Connors, “ subject to the claim of said administrator, amounting to the sum of two hundred and seventy-one dollars, as fixed by the order settling the said account herein.”

In January, 1891, the plaintiffs, William H. Finnerty and Edward Finnerty, being the owners of the other undivided one-half of the said real property, commenced this action against Margaret O’Neill, Mary A. Connors, Thomas Kirkpatrick and others for a partition of the property, or, if a partition could not be made without injury to the owners, then for a sale thereof and a division of the proceeds.

The case was tried, and the court found, among other things, that the plaintiffs and the two defendants first named were the owners each of an undivided one-fourth of the said described property, and that the same was so situated and built upon that it could not be partitioned. The court further found “ that the defendant, Thomas Kirkpatrick, as administrator of the estate of Matthew Connors, deceased, has a claim, lien and charge against the respective interests of said Margaret O’Neill and Mary A. Connors in said real estate, and there is now due and owing him thereon the sum of eight hundred and thirty-four and ninety-one-hundredths dollars, with interest thereon,” etc. And there was a similar finding as to the two hundred and seventy-one dollars.