Martinovich v. Marsicano

against her it became a lien upon all the real property in the county then owned by her, and this lien continued for five years. (Code Civ. Proc., sec. 671.) The words “real property” are coextensive with lands, tenements, and hereditaments (Civ. Code, sec. 172), and include any interest in land held by the judgment debtor. (Fish v. Fowlie, 58 Cal. 373 .) The judgment in favor of the appellant therefore became a lien February 14, 1898, upon the undivided half of the real estate described in the complaint that had been devised to Sophia, which is situated in San Francisco, and was a lien thereon at the time the judgment appealed from was rendered, unless by the decree of distribution to the plaintiff he took it discharged of this lien.

By the constitution of this state the superior court is vested with jurisdiction “of all matters of probate,” but its exercise of that jurisdiction is regulated by statute, as is the exercise of its jurisdiction in proceedings in insolvency or in cases of forcible entry and detainer, or for the foreclosure of a mortgage. “Matters of probate” include the ascertainment and determination of the persons who succeed to the estate of a decedent, either as heir, devisee, or legatee, as well as the amount or proportion of the estate to which each is entitled, and also the construction or effect to be given to the language of a will, but do not include a determination of claims against the heir or devisee for his portion of the estate arising subsequent to the death of the ancestor, whether such claim arises by virtue of his contract or in invitum; nor is the determination of conflicting claims to the estate of an heir or devisee, or whether he has conveyed or assigned his share of the estate, a “matter of probate.” Section 1665 of the Code of Civil Procedure provides that upon an application for distribution at the close of administration the court must proceed to distribute the residug of the estate “among the persons who by law are entitled thereto”; and section 1666 declares that in the decree of distribution “the conrt must name the persons and the proportions or parts to which each shall be entitled”; and that “such order or decree is conclusive as to the rights of heirs, legatees, or devisees, subject only to be reversed, set aside, or modified on appeal.” The decree- is conclusive against them “only so far as they claim in their capacities as heirs, legatees, or devisees” (Chever v. Ching Hong Poy,

82 Cal. 68 ); "only as to the succession or testamentary right.” (In re Burdick, 112 Cal. 387 .)

In the absence of statutory authority therefor, the superior court, under its jurisdiction of all “matters of probate,” would have no authority upon the final distribution of a decedent’s estate to assign the same, or any portion thereof, to any person other than an heir, devisee, or legatee. By section 1678 of the Code of Civil Procedure authority is given to it to make distribution of real estate to others than the heirs, legatees, or devisees, but its authority therefor rests solely upon the provisions of this section, and is limited by its terms. That section is as follows: “Partition or distribution of the real estate may be made as provided in this chapter, although some of the original heirs, legatees, or devisees may have conveyed their shares to other persons, and such shares must be assigned to the person holding the same in the same manner as they otherwise would have been to such heirs, legatees, or devisees. ’ ’ Under this section the court is authorized to assign the share of an original heir or devisee to another only when such heir or devisee has “conveyed” his share to such other person. The' provision in the section that “such shares must be assigned to the person holding the same in the same manner as they otherwise would have been to such heirs, legatees, or devisees, ’ ’ instead of implying that the distributee takes the share discharged of any mortgage or judgment lien thereon made or suffered by the heir or devisee in favor of third persons, clearly indicates that he takes it subject to such lien or encumbrance.

The provision in section 1666 giving to the distributees the right “to demand, sue for, and recover their respective rights from the executor or administrator” is a clear indication that distribution can be made to only those persons who are entitled to receive from the executor or administrator immediate possession of the property distributed to them. Neither in section 1678 nor elsewhere is there any provision authorizing the court to assign a share of the estate to a person who holds a mortgage or judgment lien or other encumbrance thereon made or suffered by the heir subsequent to the death of the ancestor. The appellant, therefore, as a judgment creditor of the heir, was not entitled to receive any portion of the estate, and the court could not upon distribution assign to

him any share thereof. Nor is there any provision in the statute requiring the holder of such lien to appear in court or present the same at the time of the distribution, at the peril of having the land distributed freed from his lien; and it would require a' clear legislative declaration to that effect before we would feel justified in holding that he forfeited his lien for failing to so present it. The provision in section 1666, that the order or decree is conclusive, does not by its terms include him, and his lien will be no more affected by the distribution than would a lien upon the property of the heir created prior to the death of the decedent. (See Barnard v. Wilson, 74 Cal. 512 .) In Estate of Crooks, 125 Cal. 561 , a devisee had made a mortgage upon his interest in the estate to secure his promissory note, with the direction to the probate court to distribute his interest in the estate to the mortgagee as security for the payment of said note. The court refused to make such distribution, and upon an appeal therefrom this court said: “The court correctly held that this section (1678) would not warrant the court in distributing the property to the appellants. They are not the persons entitled under the will, nor by succession, nor are they grantees to whom distribution could be made. The decree must name the persons entitled under the will or by succession or their grantees. A mortgage is not a conveyance, but only a contract by which property is hypothecated for the performance of an act.”

The respondent has cited expressions from certain cases which he construes as holding that the appellant was required to appear before the superior court upon the hearing for distribution and have his claim provided for in the decree, and that by his failure to do so he has been deprived of the right to enforce the lien of his judgment. The expressions upon which he relies are, however, to be read in connection with the facts in reference to which they were made and in the light of the statute under which the proceedings were had. An examination of the cases shows, moreover, that in none of them- was presented or discussed the right or necessity of the holder of a judgment or other lien against the heir to present his claim at the hearing upon distribution. In these cases the persons who were held to be concluded by the decree were persons who were entitled by law, or by the terms of the will,

to have a portion of the estate of the ancestor distributed to them if they had presented their claim at the hearing upon distribution. In Chever v. Ching Hong Poy, 82 Cal. 68 , one of the heirs of Chever, to whom a share of the estate was distributed, had, pending administration, conveyed his interest in the estate to his mother, and it was held he took nothing by the distribution; that the title vested in him on the death of his father by operation of law, and passed by the conveyance to his mother; that the decree of distribution is not the creation of any new title, but a mere determination of the person to whom the title of the» ancestor had descended. In William Hill Co. v. Lawler, 116 Cal. 359 , the widow had conveyed her interest in the land to one of her sons not named in the will, and upon distribution, under an agreement between two of the devisees named in the will and the widow, which was presented to the court and recited in the decree of distribution, this tract was assigned to these two devisees. In Cunha v. Hughes, 112 Cal. 111 , it was sought to show that an undivided half of the community property should have been distributed to the widow, but it was held that by her failure to present her claim at that time or to appeal from the decree she was concluded from asserting any claim to the estate. What was said by Mr. Justice Myrick, in Freeman v. Rahm, 58 Cal. 111 , with reference to the duty of the plaintiff to present his claim to the probate court, cannot be regarded as authority, for the reason that his opinion was concurred in by only two other justices of the court. The expression in some of these cases to the effect that under the notice for distribution the whole world is brought before the court, and that every person entitled to assert a claim against the estate must present the same or lose his right thereto, is to be construed in connection with the authority of the court over the subject-matter before it. The court has jurisdiction to distribute only the estate of which the decedent was possessed at the time of his death, and it is only a claim against that estate, or for some portion of it, for which it can make provision in its decree. As it can exercise this jurisdiction over only the persons to whom the estate is to be distributed, it is only these persons who can be affected by -the notice or required to give it any attention. The notice is necessarily limited in its effect

to those who are entitled to have the property distributed to them.

The judgment is reversed.

Temple, J., Van Dyke, J., Garoutte, J., McFarland, J., Beatty, C. J., and Henshaw, J., concurred.