Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1898-01-30
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matters, his jurisdiction, with >o:, . ex-
ceptlons lmmaterial here, is to be a,min-
ls,ere' under the same principles that
formerly applied to the probate court.
and under the same rules of practice. in
fact, under the same Act" Douglas -.
, Folsome, q New. 447.)
The Court must be governed, in pro-
ceedlngs in probate matte rs, by the rules
OF prac,lce prescri ed by the probate act
ana must be COVER ned by Che provisions
. Of said act as to the character and extent
of the Judgment or decree it NAV give in
any particular matter or proceeding be-
: fore it.
With reference to the partial distribu-
ton of estates of deceased persons said
Act Sec 29l9, General Statutes, provides:
'Atany time after the lapse of fourmonths
alter issuing of letters te~stamentarv or Of
administration any heir, devisee or lera
tee may present his petition 20 The Court.
that the legacy or share of the estate 70
which he is entitled may be given to him,
upon his giving bonds etc. Sec. 1921.
II executor or administrator or any
person interested i'll the estate, NAV ap-
pear and resist the application, or any
.oiher heir, devisee or legatee, may make
a similar application for himself" Sec.
1922. If at the hearing it appear that the
estate is but little indebted and that The
share of the parry or parties APPLYING
may be allowed TO him or them, without
injury to the creditors of the estate. lne
Court shall make a decree i'll conformity
with the prayer of the applicant or appli-
cants. provided, etc.
As to final distribution, Sec. 2q27. "ITDop
the final settlement of the accounts of
the executor or administrator. or at any
subsequent time. upon the application of
the executor or administrator, or any
helr, legatee or devisee, or the grantee of
the heir, legatee or devisee, the Court
shall proceed to distribute the residue of
the estate, If any, among the persons who
are by law entitled =" Sec. 1920. "'The
decree may be made on The application of
the executor or administrator, or Of any
person interested in the estate = ="
The Legislature has declared when, on
whose application, and to whom, distri-
button may be made, il proceedings for
partial and final distribution, respective-
Y. The courts are authorized to act in
pursuance of these statutory provisions.
and not otherwise in the distribution OF
said estates,
The respondents claim to the one-half
OF the community properly is based on
stld agreement, rs grantees OF the APPEL
liant. We are of opinion that under (he
above provisions, for partial distribution.
none other than an heir, devisee, or Legal
tee, having an interest, as such, in the
property for which distribution is asked.
is authorized to petition for such diStri-
bution; that the Court is not authorized
to make such distribution to anv claim
ant other than to one entitled to the prom
erty as heir, deviSee or legatee. and that
the Court exceeded its jurisdiction aud
erred in its decree, distributing comutu-
nlty property to the respondents.
The Agreement. A large portion of the
arguments of counsel was devoted to
their several contentious as to what prom
erty is embraced in said agreement.
whether the separate property only, or
both the separate and community prop
erty? The consideration and determina-
tlon OF this question were foreign to the
proper subject matter before the Court.
which subject matter was the partial dis
tribution of said estate to the applicants
as heirs, unde the statute, and not as ap-
Pllcants, as grantees, as parties Interested
Ih The "state under and by virlue of said
agreement, for, as We have shown above,
as we think, idisiributiOn could not he
properly made to de latter class of claim
ants in the proceedings then before the
court. SO, then. it was not proper for the
Court below to consider and determine
the above question in that proceeding
nor proper for this Court to do 50 on this
appeal.
Descents. There is contention bet tween
counsel as to the proper construction of
Sec. 29Sl of the General Statutes, which
provides: "When any person, having til
tie to any estate not otherwise limited by
marriage contract, shall die interstate, as
to such estate it shall descend and be dis
tributed subject to The payment of his or
her debts, in the following manner
FIRST, it is provided that the property
shall descend % the serviving husband
or vito and 20 the iuteState's descend
cuts, i'll certain specified proportions.
SECOND. II he or sh" shall leave no is
sue. the estate shall go in equal shares to
the Surviving husband or wife, and to the
iiltestatc's Gstacr.
Third. Ii there ne no issue, nor hus-
band, nor wife, nor father, thcu III rcial
shares to the brother aud sisters of the
interstate, and to the children IF any de-