This Court, in Grimes' Estate v. Norris , 6 Cal. 621, and cases following that, held that in cases where a party died before the organization of the State Government, and before the passage of the Act already mentioned, the Probate Court had no power or jurisdictionover such estates, and that all their proceedings and their consequences were absolutely null and void, there being a total want of power over such estates. This case has been followed with the cases of Tevis v. Pitcher , 10 Cal. 477, and Downer v. Smith , 24 Cal. 123. This last case was decided by the present Supreme Court, and is very clear and pointed upon this question.
The counsel for the appellants says, in his brief, " that he hopes to be able to show that the principle upon which these cases were decided was incorrect, and to point out the true rule for their determination." If it should be admitted that such principle is incorrect, and that this Court may have mistaken the law applicable to such cases, yet I scarcely think that this Court will now, at this late day--being eleven years since the first was decided, the last as late as 1864--overturn the rule there so clearly settled, and open a large number of estates which have been settled, and unsettle the title of a large amount of real estate which has passed through different hands, and been largely improved. The rule has become a rule of property, and to disturb it would produce an incalculable amount ofmischief. If there was ever a case in which the doctrine of stare decisis should apply, it should here be applied.
The counsel has attempted to make a distinction between the cast of the inheritance upon an infant and on an adult. That distinction is attempted to be placed upon ground that an infant, under the civil law, had no power to accept of the inheritance. There were, under the civil law, two kinds of heirs: the legal, who was the descendant or ascendant in direct line from the intestate; the other who was so made by the will of the testator. The latter might be a stranger, or not a pariente. When the stranger, or one who was not entitled by law to the succession, was made an heir by the will, he was obliged affirmatively to accept the estate or inheritance, before it became vested. It was cast upon him by the will, and was in the nature of a contract; and he could accept or reject, as he might elect. But the legal heir, upon whom the inheritance was cast by law as the direct in succession, had the right to reject the inheritance, if he found it so far incumbered with the debts of the intestate, as that no profit would come to him. In that event the creditors thentook it, and under certain judicial proceedings they could have it disposed of to pay such debts. The legal heir might also, if he chose, have an inventory, called in the Spanish law inventario solemne, of the inheritance and property of the intestate, to which he succeeded as heir, and in that event he would only be liable for the debts of the intestate to the extent of such property. In order that he might safely proceed with this choice, the law required the Judge of the district to cause such inventory to be made, and then the heir had some three months thereafter to deliberate what he would do. If the heir was made such by the will, and otherwise a stranger, he then, during the time for deliberation, considered and determined whether he would accept or reject the inheritance and charge; but if he was the legal heir, upon whom the law had cast the inheritance, then, during the same time, he considered and determined whether he would reject such inheritance. (Escriche, verb. Aceptacion; verb. Personas capaces de aceptar, Fb. Mijic., lib. 2, cap. 11, sec. 2.)
Justinian, when declaring that the sons and daughters are the legal and proper heirs, says: " Sed his Praetor permittitvolentibus abstinere haereditate, ut potius parentis quam ipsorum bona similiter a creditoribus possideantur." (Cooper's Justinian, lib. 2, tib. 19, sec. 2, de suis haeredibus.) If the testamentary heir rejects the inheritance, then the legal heir becomes entitled by his rightful succession. He could not then be deprived of such succession unless for some good cause, such as the payment of debts of the testator. When the inheritance was cast by law upon the legal heir, he could not be deprived of that inheritance unless he had refused to accept it, and thereby rejected it. There was no more power under the civil law, or in the Courts under that law, to deprive the legal heir of this inheritance, or to sell or dispose of it, than there is now under our law. If he had neglected to make any formal acceptance, or had neglected to make an inventory, and to have accepted such inheritance with the benefit of such inventory, he did not thereby lose his inheritance or his right to it. If he had neglected to do those things, or to pay the debts of the intestate, then the creditors might institute proceedings in the proper Courts or tribunals for such disposition of the property, as was authorized, to pay and satisfy such debts. But that could only be done after the heir at law had had his full time for deliberation, and had failed to reject or had neglected to pay those debts, or to apply the inheritance to such payment. Upon the death of Coppinger, his heir took the estate left by him, by succession, and in fee, and there was no power under the civil law to deprive her of it, except it be to pay debts to which the lands were subject. (Domat's Civil Law, Art. 2,822; Escriche, verb. Heredero Forzosa, I, II, Menor VI; De la Guerra v. Packard , 17 Cal. 194; Soto v. Kroder , 19 Cal. 97.) But it is said that, as the plaintiff was an infant, under seven years of age, at the change of Government, she had no power to accept or reject, and her case therefore is not within the decisions of this Court. The fee and right of property rested in some one as much under the civil law as at common law. When John Coppinger died the fee was in him. Upon his death it must have passed to some one. I think we have shown that it passed to his heir at law. He died leaving two children, both of whom were infants under seven years of age. If the plaintiff was not vested with the fee of the one halfof the inheritance, neither could the other heir have been vested with the other half thereof; for they both must stand alike as heirs of their father. Can there be a doubt but that the mother, who was the ascendant and legal heir of the deceased infant, acquired a perfect title to such one half, and can sell and transmit a good and valid title to such one half to her vendees?
The counsel has likened the condition of the plaintiff to the hoereditas jacens of the Roman law, and the herencia yacente of the Spanish law. The legal meaning of hoereditas jacens was an estate lying vacant between the demise of the last occupant and the entry of the successor. It was where the property was left without a legal right to any one to enter. It was confined generally to the tenant per auter vie, and when the tenant died during the life of the cestui que vie; and that in such a case he that could first enter on the land might retain the possession, so long as the cestui que vie lived, by occupancy. In such a case, and during the life of the cestui que vie, it did not revert to the grantor, for he had parted with all his interest, so long as the cestui que vie lived. It did not escheat, for escheats must be of the entire fee. It did not belong to the grantor, for he was dead. It did not descend to heirs, for there were no words of inheritance, it being but a life estate; nor could it vest in executors, for they could not succeed to a freehold. It therefore was a hoereditas jacens inheritance lying vacant and unoccupied. But it did not affect the title to the property, nor the inheritance cast upon the heir. (2 Blackstone, 257.) The Spanish law seemed to confine it to the time between the death of the intestate, who was at the time seized of the estate, and the entry of his heir at law, who succeeded to such inheritance; or where there has not been a partition of the inheritance held in common by two or more such heirs. (Escriche, verb. Herencia yacente.) But it is clear that it did not interfere with the title or the right to the inheritance, or to the full property and right to such inheritance, but merely to the occupation lying vacant for the time being.
I admit that in all cases in which it required the heir to accept or reject the inheritance, that an infant, of himself, could not do either. If it were accepted or rejectedby any one on the part of the infant, that on his arriving at lawful age he could, in the one case, be released from the burden, or, in the other case, have the inheritance from him who then might possess it. (2 Domat's Civil Law, Sec. 2,382; Escriche, verb. Inventario, V.)
The counsel seems to place this power of the Probate Court to act in this matter upon the ground that it was necessary to protect the rights and interest of the plaintiff in her inheritance and property. He says that " the former Judge of her domicil, through whom the estate of her father might have been inventoried, administered and secured for her without peril to her or prejudice to the rights of others, had lost his authority." Admit the views of this case taken by the counsel to be correct--what, then, were those rights which were secured to her by the former Judge? He might have caused an inventory to be made of the infant's inheritance, and, at a certain age, and under certain circumstances, he might have allowed the infant to reject the inheritance, if it were to her advantage. But that Judge had no power to dispose of the inheritance of the legal heir, nor even the minor himself, except to pay debtsor to discharge some personal obligation or incumbrance upon the estate; and that only where the curator or the minor, when he was capable to act for himself, had neglected to perform such duty to the prejudice of creditors. If the Probate Court has jurisdiction, as is contended by the counsel, over estates of this character, that Court has no power to sell the inheritance or property of infants for any purpose whatever. They can only sell the property of the deceased when it is necessarily required to pay the debts of such deceased, and then only when it appears that such debts are ascertained to exist, as required by law. Without that statute being strictly complied with, the Probate Court has no jurisdiction or power to sell the real estate of the deceased, and if sold, the purchaser takes nothing by the sale. This is well settled by this Court. I think it satisfactorily appears from the record in this case, that John Coppinger, at the time of his death, owed no debts.
How the rights of the plaintiff, then a helpless infant, were to be protected by this new proceeding in this Probate Court, of which the counsel speaks so feelingly in his brief, by the sale of one half of herlarge inheritance to pay for the confirmation of the other half, I am unable, and I think this Court will find it difficult, to understand. She had better have lived under the former Government and its laws, for no such power ever there existed nor would have been tolerated.
JUDGES: Sanderson, J.
OPINION
SANDERSON, Judge
Action to recover an undivided half of a certain parcel of land situated in San Mateo County, being part of the Rancho Canada de Raymundo, which was granted to John Coppinger, plaintiff's father, in 1840, by Juan B. Alvarado, then Governor of California, and confirmed and patented by the United States to the plaintiff and her mother in 1859.
The case shows that John Coppinger, from whom the plaintiff claims as heir, died intestate in February, 1847, leaving him surviving the plaintiff, Manuela and Maria Juana Antonia, who were his only children and heirs at law, and Maria Louisa, his widow. That the plaintiff was born in May, 1847, subsequent to her father's death. That Maria Juana Antonia died intestate, in February, 1850, at the age of seven years, leaving her mother, Maria Louisa, her heir at law, who subsequently, in September, 1850, intermarried with John Greer. That before the commencement of this action Greer and wife conveyed their interest to one O'Callaghan, who conveyed to one M. T. O'Conner, now deceased, and that the land in question is now in the possession of the defendants as tenants of Maria O'Conner, administratrix of the said M. T. O'Conner.
The answer of the defendants further shows that in December, 1850, the Probate Court of the County of San Francisco, upon the application of John Greer, undertook the settlement and distribution of the estate of John Coppinger, and appointed Greer administrator and also guardian of the plaintiff. That in the due course of administration the premises were regularly sold by Greer to O'Callaghan, and subsequently, on confirmation, conveyed by the former as administrator to the latter. The answer also shows that the land was sold by Greer as guardian of the plaintiff to O'Callaghan, by leave of said Court, for the purpose of raising means for the support and education of the plaintiff, and of prosecuting her claim to the Rancho Canada de Raymundo before the tribunals of the United States Government for confirmation and patent. All of these proceedings are set out at length in the defendants' answer, and it is claimed that if the title did not pass by reason of the proceedings of the Probate Court in the matter of the administration, yet by reason of the sale having been also made by her guardian for her benefit and the security and confirmation of her estate, she ought to be decreed to hold the legal title for the benefit of the heirs of M. T. O'Conner and compelled to convey it. It was also claimed at the trial on the part of the defendants that O'Conner had obtained title by virtue of a sale of the premises for taxes levied under the Revenue Acts of 1854 and 1857, while he was in the sole and exclusive possession. One Bassett purchased at the tax sale and in due course of law obtained a deed, and afterwards conveyed to one Scott, who afterwards and after the death of O'Conner, conveyed to his widow and administratrix, Maria O'Conner, lessor of the defendants.
To the matter in relation to the proceedings of the Probate Court and of Greer as guardian, the plaintiff demurred on the ground that they were null and void for the want of jurisdiction in the Probate Court--John Coppinger having died in 1847, before the adoption of the Constitution of California, and the laws in relation to the settlement of the estates of deceased persons. The demurrer was sustained, and the ruling of the Court in that respect is made the principal topic of controversy here.
We agree with counsel for the respondent that it is too late to disturb the rule which was announced in Grimes v. Norris , 6 Cal. 624. That was the case of a testator who died in 1848, and the question was whether his will had to be probated under the laws of this State, and it was held in the negative, not by reason of any casus omissus, but by reason of the actual intent of the Legislature. This doctrine was approved by the Supreme Court of the United States in Adams v. Norris, 23 How. 353, and has been uniformly adhered to by this Court from the time of Grimes v. Norris until the present. (Tevis v. Pitcher , 10 Cal. 465.) If the statutes of this State have no application to estates of testators who died prior to their passage, by parity of reason the same is true of the estates of such as died intestate, for there seems to have been no reason why any distinction should have been made; but be that as it may, it is clear that the Legislature made none. Hence the cases of Grimes v. Norris and Tevis v. Pitcher have ever since been considered as having established the broad proposition that the estates of persons who died prior to the passage of the laws in question, whether testate or intestate, whether leaving adult or minor heirs, were not within the operation of those laws, but the same were regarded as having vested in the devisees or heirs under the Mexican law. Hence it was said in De la Guerra v. Packard , 17 Cal. 193, " in our view of the rights and liabilities of the heirs under the Mexican system, we do not see upon what principle the estate was subjected to administration under our statute, and we are inclined to the opinion that whatever has been done in this respect must be regarded as unauthorized and illegal." That was the case of an intestate leaving infant heirs. So in Soto v. Kroder , 19 Cal. 97, it was again said: " Francisco Soto having died in 1845, the heirs took the estate, and are proper parties to suits for the recovery of the premises. The statute, which gives the possession and control of real property belonging to intestates to their administrators until administration of the estate and distribution of the property are had, only applies to cases arising since the statute was passed." So well settled had the rule become, that when the present members of the Court came upon the bench it was considered no longer debatable, and it has been strictly followed since without discussion. (Downer v. Smith , 24 Cal. 114; People v. Senter , 28 Cal. 502; Wilson v. Castro , 31 Cal. 420.) Downer v. Smith, as to one of the parties, was a case of infant heirs, but it was never suggested that it could for that reason be distinguished from the cases before it. These cases must now be regarded as establishing, beyond further controversy, the proposition that on the death of an intestate under the Mexican system, " the heirs succeeded immediately to the estate and became personally responsible for the debts of the deceased," irrespective of the question whether the heirs were adult or minor, and that no administration in the sense of the common law was needed or could be had at any time. It may be that the distinction for which counsel for appellant so learnedly contend should have been made, but is was not, and it is now too late to draw it. It is impossible to estimate the mischief which might result from a departure from a rule which for so long a time has been regarded by both the bench and the bar as finally settled.
The claim of the appellant, in this connection, that the probate sale, though void at the time it was made, has nevertheless been ratified and confirmed since by the Act of the 2d of April, 1866 (Statutes, p. 824,) is not tenable. That Act cannot be considered as having any application to estates which were never within the operation of our probate system. It must be interpreted by the light of that system and the judicial interpretation which for years had been put upon it. It must therefore be understood as dealing only with the proceedings of the Probate Courts, so far as those proceedings have reference to estates within the operation of the probate laws as they then and had previously existed, and not with those which related to estates which had vested in the heirs or devisees under a former system, and over which those courts never had any jurisdiction under the Constitution and laws by which they were created. Such being our views of the intent and object of the Act, we find it unnecessary, for the purposes of the present case, to inquire whether it is or is not repugnant to the Constitution.
We do not understand the defendants as claiming that the sale was ordered upon the petition of Greer as guardian, or that he acted in that capacity during any of the proceedings. It is not so expressly alleged, and we understand that reference to Greer's guardianship is made more by way of makeweight than anything else.
So far as the defence rests upon the tax sale, it cannot be sustained. O'Connor was legally bound to pay the taxes. Such being the case, he could not gain any advantage by allowing the land to be sold and buying it in himself, or by buying it from a stranger who bought at the sale. (Moss v. Shear , 25 Cal. 45.)
Judgment affirmed.