filing a supplementary inventory thereof in accordance with. the provisions of section 1451 of the Code of Civil Procedure.

If Any Portion of a Decedent's Estate is the subject of an adverse claim, it is prudent on the part of the administrator to add a memorandum to the inventory, stating the asserted claim. But the property must be inventoried; the administrator cannot stand neutral because the decedent's title is disputed: Estate of Partridge, 1 Cof. Pro. Dec. 208.

ESTATE OF HENRY WELCH, DECEASED.

[No. 6,961; decided February 16, 1894.]

Probate Order Conclusiveness and Effect.-An order by the superior court in probate is as efficacious and binding as to the matter therein determined and the rights thereby secured as any judgment can be.

Family Allowance.-An Order Making a Family Allowance is necessarily an adjudication of the existence of every fact requisite to support the order, whether the fact is expressly found or not.

Family Allowance.-An Order for a Family Allowance creates a vested right to all sums that have become due thereunder.

Family Allowance-Conclusiveness of Order.-All questions as to the right of a widow to an allowance, and as to the amount properly to be allowed her, are conclusively determined by the order of the court, if no appeal is taken.

Orders in Probate-How may be Vacated.-Orders and judgments in probate can be vacated on motion, only for the reasons and within the time provided by the code. After the lapse of that time the remedy is by independent suit.

Henry Welch died on January 14, 1888. Letters of administration upon his estate were issued to John Purcell on January 31, 1888.

On August 17, 1888, Honor Welch, widow of the decedent, filed her petition wherein she prayed for an allowance of $200 per month for her maintenance during the progress of the settlement of the estate. On August 28, 1888, the court made an order allowing the widow $125 per month from the date of her husband's death. This allowance was paid by the administrator up to March 14, 1889, and on March 23, 1889, his powers were suspended. On April 8, 1890, J. D.

Ruggles was appointed special administrator. On December 22, 1893, the widow made application for an order directing the special administrator to pay to her $7,125 alleged to be due to her as family allowance from March 14, 1889, to December 14, 1893. The special administrator filed an answer and resisted the application on various grounds.

Garret W. McEnerney, for the applicant.

Chas. A. Sumner and M. T. Moses, for the special administrator.

COFFEY, J. On August 28, 1888, subsequent to the filing of the inventory, the court, after notice of the hearing thereof given by posting for ten days, heard the application of Honor Welch, the surviving wife, for the payment to her of $200 per month as family allowance until the settlement of the estate. The petition was granted, but the amount was fixed at $125 per month. The family allowance has not been paid since March 14, 1889. This is a proceeding to compel its payment. The questions involved all turn upon the force and effect of the order.

An order made by the court sitting in probate, within the scope of its jurisdiction, is as forceful, efficacious and binding as to the matter therein and thereby determined, and as to the rights thereby granted or secured, as any judgment could be: Code Civ. Proc., sec. 1908, subd. 1; Howell v. Budd, 91 Cal. 342, 27 Pac. 747; Garwood v. Garwood, 29 Cal. 520.

An order of the court sitting in probate, making an allowance authorized by statute, is necessarily an adjudication of the existence of every fact requisite to support the order. whether the fact be expressly found or not.

An order of family allowance creates a vested right to all sums which have become due thereunder: Pettee v. Wilmarth, 5 Allen, 144; Estate of Lux, 100 Cal. 593, 35 Pac. 341.

All questions as to the right of the widow to an allowance, and as to the amount properly to be allowed to her, are conclusively determined by the order, no appeal having been taken: Code Civ. Proc., sec. 1908, subd. 1; Irwin v. Scriber, 18 Cal.

499; Brumagim v. Ambrose, 48 Cal. 366; Lucas v. Todd, 28 Cal. 182.

Orders in probate and judgments stand on like footing as to the rights thereby secured: Code Civ. Proc., sec. 1908, subd. 1; Freeman on Judgments, 4th ed., sec. 319b.

Judgments (and hence orders in probate) can only be vacated on motion, for the reasons and within the time provided by the code: People v. Goodhue, 80 Cal. 199, 22 Pac. 66. After the lapse of that time the remedy is by independent action: People v. Harrison, 84 Cal. 608, 24 Pac. 311.

The doctrine of laches is a doctrine which obtains in equity only. Delay less than the period of limitation never bars the remedy at law.

There is no period of limitation prescribed in probate, except in isolated instances, of which this is not one.

The allegations in the answer do not make a case of fraud: Allen v. Currey, 41 Cal. 320; In re Griffith, 84 Cal. 113, 23 Pac. 528, 24 Pac. 48; Pico v. Cohn, 91 Cal. 129, 25 Am. St. Rep. 159, 25 Pac. 970, 27 Pac. 537, 13 L. R. A. 336. But even if they did, they would be of no avail. Fraud must be proved as well as pleaded.

An order reducing a family allowance previously granted, and made retroactive is error: Pettee v. Wilmarth, 5 Allen, 144; Estate of Lux, 100 Cal. 593, 35 Pac. 341; Ford v. Ford, 80 Wis. 565, 50 N. W. 489.

Application granted.

The Principal Case was Affirmed in 106 Cal. 427, 39 Pac. 805.

Prob. Dec., Vol. III —20

ESTATE OF ANTONIO SPINETTI, DECEASED.
[No. 13,106; decided February 19, 1894.]

Grandparent Promise to Support Grandchild. The law imposes no duty on a grandfather to provide for his grandchild, and his promise to do so is without consideration, and cannot be enforced against his estate.

Family Allowance.-A Grandchild whose mother is living is not entitled to an allowance from the estate of his deceased grandfather. J. M. Burnett and E. D. Sawyer, for the motion to dismiss.

Sullivan & Sullivan, opposed.

COFFEY, J. Antonio Spinetti died, leaving four adult children, and one minor child named William Spinetti. The petitioner is one of the adult children, and is the mother of Antonio Demartini, for whose benefit the petition is filed by her. The child Antonio was born in the house of Mr. Spinetti, and lived in the house of his grandfather from his birth until the death of Mr. Spinetti. When Mrs. Ghiglieri obtained a divorce from Demartini (the father of the child), Mr. Spinetti promised he would provide for the child, and did so from that time. As he did not like the name of Demartini, the child was called Antonio Spinetti at his request.

The property of heirs at law, devisees and legatees can only be taken from them to discharge an obligation for which their ancestor or testator was legally bound, or which is imposed by the law.

On the death of any person his property descends to his heirs at law, or to his legatees and devisees, subject to the burdens imposed on it by law. Courts do not give the property of one man to another, unless there is some legal obligation calling on them to do so. While a man may be generous and do what he pleases with his own while living, the moment he dies the rights of others accrue, and those rights courts will not deprive them of, except where the law imposes an cbligation in favor of one upon the other. The law enforces legal, and not merely moral, obligations. Therefore, if Mr.

Spinetti was under no legal obligation to support his child, the property of respondents should not be taken for that purpose.

Mr. Spinetti was under no legal obligation to support his grandson.

We look in vain to the laws of this state for any provision requiring a grandfather to support a grandson, when both parents are living, and where neither has been shown to be infirm or incapacitated in any way. On them, and not on him, is the burden imposed. We may as well search for a provision allowing a grandchild to inherit "through an ancestor who is not dead." Nor can the alleged promise to support the child avail the petitioner. The promise, if any were made, was not to be performed within one year, and to be of any force must have been in writing: Code Civ. Proc., sec. 1973.

There was no consideration for the promise.

There was no benefit accruing to the promisor, nor was there anything valuable flowing from the promise: Violett v. Patton, 5 Cranch, 142, 3 L. ed. 61; Civ. Code, secs. 1605, 1606.

Suppose Mr. Spinetti had refused to support this child, could the child have sustained an action compelling him to perform the agreement? Where was the consideration to support such a promise? The court would have held the promise was merely gratuitous, and imposed no legal obligation on Mr. Spinetti.

But to go further, and stand upon the promise itself, Mr. Spinetti, the decedent, as the case now stands, only promised he would provide for the child. This duty, even conceding one existed, only continued during his lifetime. There was no valuable or good consideration, which would make the agreement bind his heirs or executors, or impose any obligation on his estate.

As Antonio Demartini is a grandchild, and his mother is living, he is not entitled to an allowance from the estate of his grandfather.

The power to make a family allowance did not exist at common law. This court, sitting in probate, derives its authority from the statute, and to the statute, then, the court must look for that authority.