The record-union., 1899-04-22

in good tenantable repair all houses,
buildings and fixtures thereon which
are under his control"
Section 14o3 of the same code provides
that, unless it satisfactorily appears
to the court that the rents and profits
of the real estate are necessary for the
payment of the debts of the decedent,
or that it is necessary that the real
estate be sold to pay such debts, the
court must, at the end of the time linn
tied for the presentation of claims, di
rect the delivery of the estate to the
heirs or devisees
The Probate Act, which furnished the
rule in force in this State prior to the
adoption of the codes, contained pro-
visions practically similar to the pro-
visions of Sections 1852 and 1853 of the
| Code OF civil Procedure, and the Su-
preme Court of this State, in constituting
those provisions of the Probate Act,
has SAID: Inc title at the moment OF
the death OF the testator, or intestate,
vests in the heirs and devisees subject
| only to the lien of the executor or ad
ministrator, for the payment of the
debts and expenses of administration,
with the right in the administrator of
/ present possession, which continues un-
| til the estate is settled or delivered
over to the parties entitled by the or
| der OF the Probate Court. I'm
doubtedly, IT required to pay the debts
as between the creditors and heirs or
devlsees, the rents received after the
death of the testator would be applied
/ before sale of the real estate 1t
would seem to follow that, as the title
| vests in the devisee at the moment
| of the death of the testator, subject
only TO payment of the debts in the
order prescribed by law, the rents of
the land would belong to the owner of
the land, subject to the payment of the
debts in the same order" Estate Of
| Woodwork, 81 CAL, 6O4-5.)
| Again, the same court has said: "To
| this date (date of distribution the ex-
ecutrix was clearly entitled to receive
these rents by virtue of the provisions
of Section 1852 of the Code of Civil
Procedure. BY this section she is en-
! titled to receive the rents and profits
of the real estate until the estate is
settled or until delivered, by order of
the court, to the heirs or devisees. 1t
is true that the devsee of this land
the plaintiff, takes title from the death
of the testator, and has right to the
rents and profits arising from it from
| the same date" Washington VS..
Black, 90 Cal, 293.)
| In the matter of the estate of James
! Dunn, reported in the Goth Cal, at page
3iS, the Supreme Court of this State
approved partial distribution of said
| estate, whereby the rents and profits
of the real estate were distributed to
the devisee of said real estate.
| 1t is the opinion of the court that the
rule of the common law. which was thar
the -devisee was entitled to the rents
from and after the death of his testator.
has been modified in this State by the
statute in one particular only, viz:
That the executor, or administrator. is
entitled to collect the rents and profits
OF the real estate pending administra-
tion and, in cases where such rents ard
profts are necessary to pay the debts
OF the decedent, the expenses of admin
lstration of his estate, or the family
allowance, the same shall be so applied
otherwise they are distributable to the
heir or devisee of the land, and not to
the residuary legatee. 1t is conceded
in this case, however that the rents"
OF the realty, which the devisee thereof
is entitled to receive, are the net re-
ce1pts from the real property. There
fore, the expenses incurred by the ax-
ecutors in the management and conduct
OF the real property should be deducted
from the gross receipts from the same
source, and the balance distributed to
the devisee
! Thlrd-The third and last question in
volved in this proceeding is whether or
not the legacies to the surviving widny
should be charged with their proror-
tionate share of the expenses of ad-
ministration and family allowance.
Section 1883 of the Civil Code reads
as follows: The property of a testa-
tor. except as otherwise specially pro-
Vided in this code, and the Code Of
civil Procedure, must be resorted to for
the payment of debts, in the following
order: L. The property which is ex-
pressly appropriated by the will for the
payment of debts; 2 Property not dis
posed OF by the will; 3. Property which
| IS devised or bequeathed to a residuary
Iegatee; 4. Property which is not spe-
cltlcally devised or bequeathed; and, B.
All other property ratably. Before any
debts are paid, the expenses of the ad-
mlnlStration and the allowance to the
I Iamlly must be paid or provided for
In the case at bar no property was
expressly appropriated for the payment
oil debts, and all of the property was
disposed of by will
The solution of this question, under
the provisions of the section just quot
ed, would be easy We're it not for the
provisions of Section 1863 of the Code
OF Civil Procedure. That section reads
as follows:
The estate, real and personal given
by will to legatees and devisees, is
liable for the debts, expenses of admin
istration, and family expenses, in pro-
portion to the value or amount of the
several devisee or legacies; but specific
devises or legacies are exempt from
such liability, if it appears to the court