The record-union., 1897-12-04


the power of the court, and we must
presume that the court intended to Keep
within it's powers"
They further say that it is not neces-
sary to determine the exact meaning
of Limited period" for it is conceded
by all the courts such period cannot
extend beyond the life Of the party to
whom the property is awarded. The
case Of Simpson VS.. Simpson, 80 CAL,
241, sustains this view.
Then this property does not vest alb
solutely in the widow, but can extend
no further than the period of her nat
uraI life. This being so there still
exists an estate in the premises after
the expiration of the homestead of the
widow, which, under the will, vest one
half IN the widow and the other half
to the two adult children.
"All the property of a decedent shall
be chargeable with the payment of the
debts of the deceased, the expenses of
administration and the allowance to
the family. except as otherwise pro-
vided in this Code, and in the Civil
Code" etc. G. c.. p, Section 1916.
THE property of a testator, except
as otherwise specially provided in this
Code. ard the Code of Civil Procedure,
must be resorted to for the payment of
debts, in the following order:
L. Property which is expressly ap-
propriated by the will for the pay
ment of the debts
80. Property not disposed of by will.
3. Property which is devised or be-
queathed to a residuary legatee.
IT, q
devised or beQueathed.
-. All other property, notably" etc.
Civil Code, Section 1859.
The executors, however, claim that
the holder of the note and mortgage
having filed no claim against the es-
tate the estate is not liable; but the
very section which they invoke, Sec
tion 1900 of the Code of Civil Proce-
dure, provides that the holder of a
mortgage may proceed against the
property mortgaged, provided he waive
all recourse to the other property.
In such a case the executor would
necessarily have to be made party
to the suit though the general assets
of the estate would not be liable for
any judgment obtained, and the estate
would be entitled to any surplus that
might come after the lien was satisfied.
To that extent it is the duty of the
executors to look after such lien and
see that no useless costs are made for
the estate is interested to that extent.
And | think it would clearly be within
the scope Of his duty in such an event
to apply to the court for leave to dis
charge such lien, so as to save the
Dr0npr~fv from, haipcr y-o cfad hv litioa
tion necessary to satisfy the lien. Es-
pecially SO as in this case, where the
lien is for an amount only one third of
the value Of the mortgaged property
If he fails to do so, I do not see why
others interested in the estate may not
apply and the court grant relief.
If this were not so the creditor the
executor and the legatees not specifi-
cally interested in the particular tract
mortgaged could so collude as to have
the burden Of the debt fall upon a
particular tract, and effect a particular
legatee. That is the effect that would
be in this case, the widows portion of
the estate is small, and practically con-
fined to this piece, and if she is COM
PEELED to take it subject to this mort
gage she practically gets nothing or a
minimum sum of defendants estate.
which was doubtless not the intention
Of the testator, for he had right to
presume that the creditor would pre-
sent his claim, and that the same would
be Iaid out of the assets of the estate
other than the specific devise of the one
undivided half that would go to her.
1t was not so intended by the Legisla-
ture when they executed Section 1859
Of the Civil Code just cited
"The Superior Court while sitting in
matters Of probate is the same as it
is while sitting in cases of equity, in
cases at law or in special proceedings.
and when it has jurisdiction of the
subject matter of a case falling within
either of these classes it has power to
hear and determine in the mode pro-
vided by law all questions of law and
fact, the determination of which is an
cillary to a proper judgment in such
case. This is an incidental power per-
tanning to all courts for the purpose Of
enabling them to exercise the jurisdic-
ton which is conferred upon them"
On re Burton, 90 Cal, 464.) See also
Pennie VS.. Roach, 94 CAL, 515.
I think, as 1 said before, that this
court would have had the power to
have directed the discharge of the lien
were it for the best interest Of the
estate upon the application Of the exec
utor 1t seems then but equitable and
just to have the lien discharged upon
the application of one who is interested
in the estate, and interested in this
particular piece upon which the lien
rests, because by reason of the statute
all the rest of this estate should have
been exhausted before her specific de-
yised property could have been taken
for that purpose. She should not be
made to suffer by reason of the me-
glect. perhaps intention for that pur-
pose through collusion with others who
would reap the benefit by it. Equity
should, and l believe can, step in and
assist her
The intention of the testator to give
her this property unincumbered should
be carried out The executors should
take steps to discharge the lien, and
pay for the same out of the property
of the estate in the order prescribed by
the statute.
The proper order to that effect will
be directed to be entered
MATT T. JOHNSON.
Judge of the Superior Court.
Try McMorry's Blend Coffee. 35c