Buckley v. Superior Court of San Francisco

The Court. This is an application for a writ of prohibition commanding respondent to refrain from further proceedings in the estate of Catherine M. A. Buckley, deceased, respecting the partition of certain real estate.

The petition shows that, at the time of her death, C. M. A. Buckley was the owner of undivided interests in certain real property situated in the counties of Napa, Marin, and San Francisco; that on May 12,1893, the final account of the executor was allowed and approved; that on the same day the decree of final distribution of the estate was entered distributing one-half of the interest of decedent to Vincent P. Buckley, and the remaining one-half interest to E. J., Paul K., and Margaret G-. Buckley. No petition for the partition of the estate of the decedent had been filed by any person at the time when the order of distribution was made, nor at any time prior to June 17, 1893; on the day last named Vincent P. Buckley presented a petition praying that commissioners be appointed to make a partition of all the estate of decedent, including said undivided interests; thereafter, August 30, 1893, the court made an order directing that partition of the estate be made among said persons entitled thereto in proportion to their respective rights, and that William E. White, Martin J. Burke, and Frank W. Lawlor be .appointed ■commissioners to make the partition.

It is claimed by petitioner that the court below did not have jurisdiction in the proceedings sought to be prohibited: 1. Because the proceeding is for the partition in probate of property of which the decedent was a tenant in common; and 2. Because jurisdiction cannot exist in any case to make partition in probate proceedings, unless the petition therefor is filed before the entry of the final decree of distribution.

[8]We see no escape from the conclusions contended for by the petitioner. Proceedings for the administration of the estates of deceased persons, and for their distribution, are purely statutory. The court, while sitting as a court of probate, has no other powers than those given to it by the statute, and such incidental powers as pertain to it for the purpose of enabling it to exercise the jurisdiction which is conferred upon it. It has no power to determine disputes between heirs or devisees and strangers as to the title to property. (Smith v. Westerfield, 88 Cal. 378; In re Haas, 97 Cal. 232.)

Section 1675 of the Code of Civil Procedure, conferring upon the probate department of the superior court power to partition estates held in common, and undivided, applies only to cases before the court in which it is possible to set aside property to be held in severalty. Partition necessarily results in the termination of the cotenancy, and vests in each person a sole estate in a specific purparty or allotment of the lands; but here any one of the parcels which may be set aside to the minor heirs could not be finally held in severalty under the decree, because of the title of the other cotenants not before the court. Another partition would follow, which might result in setting aside to the cotenants not now before the court the same land which the probate court had set aside to the minors. That partition cannot be made in probate unless the interest of the decedent is an estate in severalty we think is clear. (Richardson v. Loupe, 80 Cal. 496.) The subject matter of the jurisdiction is the property of the deceased only, and this jurisdiction cannot be extended, even by the consent of all parties interested in the property. The probate court is authorized to make partition only in certain cases of joint tenure. Its action must be confined to a single estate. Under statutes like ours partition is had only because the land was the property of the decedent, not because it is the land of heirs. The fact that jurisdiction of all undivided interests of a de