the title to which is disputed. Determination of title belongs to another forum.

5. Where part of an inventoried estate of a decedent is in dispute, the adjudication of the title belongs to common law tribunals; a Probate Court cannot conclude the question. [T. J. L.]

On September 28, 1885, Annie E. Partridge filed an affidavit and petition, the statements in each being the same, viz. That she was interested in the estate as one of the distributees thereof; that decedent at time of his death owned and possessed certain bonds of the City of Sacramento, of the face value of $25,300 (with interest), and of the actual value of over fifty cents on the dollar; that upon information and belief, the said bonds have, since decedent's death, been in possession or under control of John Partridge, the agent of the administrator in the matters of the estate; that on September 14, 1885, she made demand on the administrator (Antoine Borel) to inventory said bonds as a part of said estate, "and the said Borel informed affiant that he would take no action, either for or against said estate, in the matter of said demand." That said bonds are not mentioned or included in the inventory of said estate on file. In response to a citation issued, the administrator made answer on October 6, 1885, setting forth substantially that the decedent left a will, which was duly admitted to probate, in and by which decedent's brother, Patrick M. Partridge, was made the sole legatee and devisee; that decedent left him surviving a son, Louis G. Partridge, of the age of majority, who was the husband of petitioner, Annie E. Partridge; that by reason of a claim of the invalidity of the will set up by the son, negotiations were entered into between the said son and the aforesaid devisee, which resulted in an agreement whereby the son withdrew his opposition to the will and consented to its probate, in consideration that the devisee should assign the son onehalf of the decedent's estate; that the John Partridge

mentioned in Annie E. Partridge's petition is the son of the devisee, Patrick M., and for many years prior to decedent's death was employed by him in his business matters; that in course of the negotiations between the said Louis G. and Patrick M., it became known that said John was in possession of the bonds referred to in Annie E. Partridge's petition, and that he claimed to be the owner of them; also that he had a large claim against decedent for services performed; that therefore, to effect a settlement of all matters of controversy, it was agreed between John and Louis G. that upon the admission of the decedent's will to probate John should receive $1,500 from Louis G., and the latter should consent that the said bonds were and should be considered as the property of John and not of decedent's estate, and John should waive all claims against the decedent's estate, and against Louis G.

On October 17, 1885, the said administrator, Borel, filed an amended answer to the aforesaid petition of Annie E. Partridge, in which he set forth that the inventory of the decedent's estate returned and filed by him contained all the property of the estate coming to his knowledge or possession; that there was no other property except that returned in the inventory; a denial that decedent owned the bonds mentioned in the petition; or that the bonds had ever been in his (Borel's) possession, or under his control; or that John Partridge had been his agent as administrator or otherwise. Alleged, upon information and belief, that the bonds were never the property of decedent, and never formed part of his estate. The opinion below was delivered upon the hearing of the order to show cause made upon the petition, and the answers. of the administrator.

NOTE. In the pleadings above mentioned the decedent's name is spelled "Lewis," but in the opinion of the Court it is spelled "Louis." The Court is correct, as the decree of final distribution shows; also the administration of the son's estate, Cause No. 4,024.

Mr. T. Z. Blakeman, for applicant, A. E. Partridge.
Mr. E. S. Pillsbury, for John Partridge, claimant.
Mr. S. V. Smith, for A. Borel, administrator.

COFFEY, J.-This is an application to compel the administrator to include in his inventory certain bonds"Sacramento County Bonds"-alleged to belong to the estate of Peter G. Partridge, deceased. The administrator makes response that the reason of his omission was and is that John Partridge, nephew of deceased testator and son of Patrick M. Partridge, the sole devisee and legatee under the will of Peter G., asserted title to the bonds, which title was recognized by the disinherited only son of deceased testator, Louis Partridge, now deceased, whose surviving widow is the moving party in this proceeding. The agreement between Louis and John was in writing. There were only two persons interested in the subject matter at that time, Louis, the disinherited child, and Patrick M., resident in Canada, who was the universal devisee and legatee. Between these two a settlement was made outside of Court, and without opposition the will was admitted to probate. Thereafter the controversy between Louis and John about the ownership of the bonds. was apparently adjusted. In this hearing the administrator stood aside, as a "neutral" spectator, professing willingness to submit to any order the Court might make, after taking testimony, as to the transaction between Louis and John. John Partridge then came in, represented by special counsel, and has undertaken to show that, inasmuch as he owned and owns the bonds in question, the administrator cannot be obliged to include them in the inventory. The administrator cannot assume an attitude of neutrality. He must, under the statute (Section 1443, C. C. P., et seq.), make a true inventory and appraisement of all the estate which has come to his possession or knowledge, and he is accountable therefor. If

any portion of the estate is claimed by others, it seems prudent to include this item in the list, with words or a memorandum stating the asserted claim. (Schouler's Executors and Administrators, Section 233.)

Without reference in any manner to the character of the transaction between John Partridge and the deceased Louis, it is clear that the administrator should have included the disputed item in his inventory. The only reason why the decision has been deferred is that the Court was desirous of placing the parties upon an equal footing in any litigation as to the title in another tribunal. After a full and anxious consideration of the whole matter, a consideration of the arguments and briefs and review of the testimony, I am convinced that the correct conclusion is that the administrator should inventory these bonds. Any other conclusion would, in my judgment, be equivalent to assuming a jurisdiction which this Court sitting in probate may not exercise.

A Court of probate ought not, it would appear, to reject an inventory, or order it modified, because it contains property the title to which is disputed; for to common law tribunals belongs the adjudication of the title, and the Probate Court cannot conclude the question. (Schouler's Executors and Administrators, Section 236.)

Gold's Case, Kirby (Conn.), 100; see opinion on
page 103.

Application granted.

་

Estate of JEAN PIERRE RICAUD, Deceased.

[No. 7,754, former Probate Court. Decided November 7, 1883.
Affirmed, 70 Cal., 69.]

Settlement of Account of Executors.

Specific Legatee-Rights of-Property Specifically Bequeathed -Sale of-Proceeds of-Executor's Account--Commissions— Estate Accounted for-What is not-C. C. P., Sections 1613, 1618, Construed.

1. A legatee of a specific bequest can take only such interest in the property bequeathed as the testator had a right or power to dispose of by will.

2. Where property specifically bequeathed is sold under order of Court, the specific legatee is not entitled to the proceeds before distribution, but the same must be held subject to administration.

3.

Executors are chargeable in their account "with the whole of the estate of the decedent" which may come into their possession (Section 1613, C. C. P.); and commissions can only be allowed upon the amount of such estate so accounted for (Section 1618, C. C. P.) 4. Executors cannot be said to have accounted for property as part of the estate of their testator, to which it has judicially been determined that the estate had no title, and which consequently never belonged to the estate, and formed no part of its assets for which they are chargeable.

[E. T.]

Jean Pierre Ricaud died April 1, 1877, in San Francisco, a resident thereof, and leaving estate therein.

He left a last will and testament, dated March 26, 1877, in which Francois Larroche and Leon Auradou were named as executors.

Upon petition filed by them on April 6, 1877, said will was admitted to probate, and they were appointed executors thereof on April 26, 1877, and letters testamentary were issued to them on April 28, 1877.

Amongst the estate left by decedent was a saloon in San Francisco, which, by said will, was bequeathed by the testator to his brother, Michael Ricaud.