The record-union., 1891-04-01

/ described in the last preceding paragraph
belonged to said deceased, and knew that
! the same should have been described, set
forth, and included in said inventory, but
the said William M. Morris, knowingly,
deceitfully, and fraudulently, and for the
purpose of deceiving and defrauding your
petitioner and the court, did not disclose
his possession thereof, and omitted to in
clude the sums, or any part thereof, in
said inventory IN order to impose upon
the court, and in order that the action and
decision OF this court might be influenced
and prejudiced against your petitioner,
and III order that the court might be made
to believe that the estate OF the said de-
ceased was smaller than it really was.
| And the said William NJ. Morris, then
and there, and thereafter, connived and
conspired with the deviSees under the
will of said deceased to deceive and
impose upon this court, by agreeing upon
| a secret and clandeStine distribution OF
said money and property in the hands
and under the control OF the said Morris,
| as aforesaid, and the same was, in pursu-
ance of said fraudulent, colluSive, and
clandestine agreement, thereafter dis
tributed by said Morris to said devisees
without the knowledge or consent OF
this court"
The petition also states that the peti-
| toner did not learn Of these facts until on
| or about the 5th of May, 1856, and that,
Notwithstanding she exercised all the
| diligence in her power IL searching for
and collecting testimony to establish
| them, she did not succeed, and could not
| have succeeded in doing so, until i'm
kmediately before the 18th of December,
1887, and that it was impossible for her to
cause TO be prepared and filed a new pc
tition, asking for an allowance, before the
decree OF distribution was made and en-
| tered.
| THE evnc,Itorc dn1,o,,r,od 70 4La ,,o4;+;o,,
on the ground that it did not state facts
! sufficient to entitle the petitioner to the
relief prayed for, or to any relief. And
when the petition came on to be heard
the executors, by their counsel, moved
the court for dismissal thereof, upon the
! ground that decree of distribution had
| been duly given, made, and fled; that
the executors had been discharged from
all their liabilities as such executors; that
the court had no jurisdiction to hear the
! petition; and also because the whole mat
| ter was res ddjadlcltu. The court granted
the motion and entered an order dis
missing the petition. From that order
this appeal is prosecuted.
In Willis VS.. Farley ca Cal. 49l) il ap-
peared that an action was commenced to
| foreciose a mortgage against the property
| Ofan estate, and process was served on one
| Shirley as administrator, after the estate
! had been distributed and the admins
| that action was commenced and the de-
cree was entered there was no such adj
mlnlstratior, and hence, the whole pro-
! ceeding was Of no binding validity, it was
to all mtents and purposes a nullity; for,
| by the discharge ofthe administrators they
We're as completely separated from the
| business of the estate as if they had been
dead; and j. NJ. Shirley had no right TO
/ appear in or be party to any suit as the
| representative Of the estate which had
passed from his hands, and respecting
which his authority had long before then
| wholly ceased;
1t is claimed for appellant that that case
/ is unlike this, and not in point, because
! here there was direct application to have
the discharge set aside on the gound that
part Of the estate had been concealed
and kept back. But, under the circum-
stances shown, we fail to see how this
tact can IN any way aid the appellant.
On the former appeal it was held that
under the statute only those who were
i the immediate family of the deceased
and were by law entitled up TO his death
to look to him for support and protection,
could claim any allowance for support
out OF the estate. And the court. after
! reviewing the authorities, said (73 Cal
| 5S9J: 1t is enough TO say that-since the
! appellant voluntarily made an agreement
/ with her husband for separation, such as
our law authorizes, received and enjoyed
the benefits of the money paid for her
! support during the separation and Volun-
tawly continued to live apart from him
| without any attempt TO set aside the agree
ment or to assume again the matrimonial
connection, or even to demand further
means for her separate support-the court
below was justified in holding that the
petitioner did not constitute the immedi-
ate family OF the deceased, to whom was
to be continued, during the settlement of
/ the estate, the reasonable support
Which the husband, in ordinary cases, is
| presumed to furnish his wife,
| As Is readily seen, the decision did not
J depend upon the amount or value of the
estate, but rested solely upon the fact that
! the petitioner, under the statute. was not
entitled TO the ereliefdemanded. Now con-
ceding, as claimed, that it was the duty of
the court below, when informed under
OATH even by stranger, that large part
of the estate had been concealed and
withheld from administration, to arrest
all proceedings, until the truth or falsity
of the accusation should be ascertained,
and, If found to be true, to yacate its
order of distribution and discharge, still
appellants rights were in no way affected
by the action of the court, and she was
not thereby ''aggrieved."
It results, we think, that the appellants
petition was properly dismissed, and we
advise that the order be affirmed.
We concur:
VANCLIEF, c.,
FooTE, G..
THE COURT.
For the reasons given in the foregoing
| opinion the order appealed from is
affirmed.
Filled at Sacramento March 2S, 1891
Appeal from the Superior Court of Sac
ramento County-W. c. Van Fleet,
Judge.
For appellant, Johnson, johnson &
Johnson.
For respondent. Robert II. Devlin, a.
L. Hart and j. C. Tubbs.
IN BANK.
In THE MATTER OF THE Es-)
TATE OF JOSEPH BAU- No. 1889.
QUEER, DECEASED.
Joseph Bauquier died leaving an estate
estimated at about $40, 900. In his will he
named his daughter, Mrs. Rode, execu-
triN. Letters having been refused her.
Frank Bauquier, a son of the deceased,
the Public Administrator, and one Smith,
severally applied for letters. At the
hearing contest was inaugurated be-
tween Bauquier and the Public Aminis-
traitor. The court denied the application
of Bauquier and Smith, and appointed
the Public Administrator, and thereupon
Bauquier took this appeal.
An appeal had been previously taken
by Mrs. Rode from the order denying her
application to be appointed executrix,
Since the submission of this case here,
that order has been reversed and thereby