administra liver real estate to heirs or the end of the personal estate of the deceased vests in the heir, but the administrator is entitled to the possession of the same, and this right of possession extends by relation, back to the time of the death of the deceased. Jahns v. Nolting, 29 Cal. 507. By section 114 of the probate act, the executor or administrator has a right to the possession of the real, as well as the personal estate, and may receive the rents and profits of the real estate until the estate is settled up and delivered over to the heirs and devisees by order of the probate court. But this section does not of itself make any change in the order in which property shall be applied in payment of the debts. The title at the moment of the death of the testator or intestate, vests in the heirs and devisees sub ject only to the lien of the executor or administrator, for the payment of the debts and expenses of administration, with the right in the administrator of present possession, which continues till the estate is settled or delivered over to the parties entitled, by order of the probate court. Estate of Woodworth, 31 Cal. 595. Void order of probate court.-Where under a void order of the probate court, portions of an estate passed into the hands of the surviving widow, who was also one of the executors administering upon the estate as her own, under a devise in the will, if still in esse, such portion must be considered as constituting part of the estate in her hands as co-executrix; and if not in esse, then as chargeable against her in her account with the estate. Abila v. Burnett, 33 Cal. 658. Right of possession of one of several executors.-In case administration be by more than one executor, each one is equally entitled to the possession of the estate; and where, without the agency of one executor, the property of the estate passes into the possession of another, and becomes lost to the estate, he is not chargeable who had not the possession of the portion thus lost. Ibid. Executor or SEC. 1453. Unless it satisfactorily appears to the protor to de- bate court, that the rents, issues and profits of the real estate for a longer period are necessary to be received by devisees at the executor or administrator, wherewith to pay the debts ten months, of the decedent; or that it will probably be necessary to sell are debts to the real estate for the payment of such debts; at the end of N. S. ten months from the first publication of the notice to creditors, the court must direct the executor or administrator to deliver possession of all the real estate to the heirs at law or devisees. unless there be satisfied. Statutes of 1851, p. 461, § 114. NOTE. This is an entirely new section and the propriety of enacting it, it is presumed, will sufficiently appear on reading it. The same idea was embodied in the work of Judge Currey, of the former commission. See cases cited under preceding section. ARTICLE II. EMBEZZLEMENT AND SURRENDER OF PROPERTY OF THE ESTATE. SECTION 1458. Embezzling estate before grant of letters testamentary. 1459. Citation to person suspected to have embezzled estate, etc. 1461. Persons entrusted with estate of decedent may be cited to account. estate of letters tary. SEC. 1458. (2 116.) If any person, before the granting Embezzling of letters testamentary or of administration, embezzles or before grant alienates any of the moneys, goods, chattels or effects of a testamendecedent, he is chargeable therewith and liable to an action by the executor or administrator of the estate, for double the value of the property so embezzled or alienated, to be recovered for the benefit of the estate. See section 1582, post. Statutes of 1851, p. 462, § 116. In suit by an administrator against defendant, for conversion of the property of the estate, under the one hundred and sixteenth section of the statute to regulate the settlement of estates, the proof, as to the right, or title, or possession of plaintiff, and the taking or interference by defendant being conflicting, it is error to instruct the jury that a mere demand on the defendant, and refusal by him to surrender the property, charge him with a conversion. Beckman, Adm'r, etc., v. McKay, 14 Cal. 260. See Jahns v. Nolting, 29 Cal. 507, cited under section 1582, post. Where an executor de son tort afterwards takes letters, his responsibility relates back to the death of his testator, as to his own first act of unauthorized interference. Est. of Farrell, 1 Tucker's Sur. Rep. 108. person sus have estate, etc. SEC. 1459. (2 117.) If any executor, administrator or Citation to other person interested in the estate of a decedent complains pected to to the probate judge, on oath, that any person is suspected embezzled to have concealed, embezzled, smuggled, conveyed away or disposed of any moneys, goods or chattels of the decedent, or has in his possession or knowledge, any deeds, conveyances, bonds, contracts or other writings, which contain evidences of, or tend to disclose the right, title, interest or claim of the decedent to any real or personal estate, or any claim or demand, or any last will, the judge may cite such person to appear before the probate court, and may examine LAV Lia dot dan him on oath upon the matter of such complaint. If such person is not in the county where letters have been granted, he may be cited and examined, either before the probate court of the county where he is found, or before the court issuing the citation. But if in the latter case he appears and is found innocent, his necessary expenses must be allowed him out of the estate. Page 78. 1460. If the person so cited refuses to appear and submit to an examination, or to answer such interrogatories as may be put to him, touching the matter of the complaint, the Court may, by warrant for that purpose, commit him to the County Jail, there to remain in close custody until he submits to the order of the Court, or is discharged according to law. If, upon such examination, it appears that he has concealed, embezzled, smuggled, conveyed away, or disposed of any moneys, goods, or chattels of the decedent, or that he has in his possession or knowledge, any deeds, conveyances, bonds, contracts, or other writings, tending to disclose the right, title, interest, or claim of the decedent to any real or personal estate, claim, or demand, or any lost will of the decedent the Probate Court may make an order requiring such person to disclose his knowledge thereof to the executor or administrator, and may commit him to the County Jail, there to remain until the order is complied with, or he is discharged according to law; and all such interrogatories and answers must be in writing, signed by the party examined, and filed in the Probate Court. The order for such disclosure, made upon such examination, is prima facie evidence of the right of such administrator to such property in any a tion brought for the recovery thereof; and any judgment recovered therein must be for double the value of the property as assessed by the Court or jury, or for return of the property, and damages in addition thereto, equal to the value of such property. In addition to the examination of the party, witnesses may be produced and examined on either side. entrusted of decedent may be cited to SEC. 1461. (2 119.) The probate judge, upon the com- Persons plaint, on oath, of any executor or administrator, may cite with estate any person who has been entrusted with any part of the estate of the decedent, to appear before such court, and re- account. quire him to render a full account, on oath, of any moneys, goods, chattels, bonds, accounts or other property or papers belonging to the estate, which have come to his possession in trust for the executor or administrator, and of his proceedings thereon; and if the person so cited refuses to appear and render such account, the court may proceed. against him as provided in the preceding section. Statutes of 1851, p. 462, § 119. Under a section of the Texas Probate Act (article 1,228, of Hartley's Texas Digest) the chief justice is authorized, upon complaint filed, to cause any person (including previous administrators) to appear before him and deliver up any papers, evidences of debt, etc., which he may have in his possession belonging to an estate, or show cause to the contrary. It was held that this section did not empower the court to require an administrator who had been removed, .to surrender his vouchers, or any papers necessary to his own defense. Miller v. Jasper, 10 Texas, 513. CHAPTER V. OF THE PROVISION FOR THE SUPPORT OF THE FAMILY, AND OF ARTICLE I. OF THE PROVISION FOR THE SUPPORT OF THE FAMILY. II. OF THE HOMESTEAD. Widow and minor children may remain in house, etc. ARTICLE I. OF THE PROVISION FOR THE SUPPORT OF THE FAMILY. SECTION 1464. Widow and minor children may remain in decedent's house, etc. 1465. All property exempt from execution to be set apart for use of family. 1466. May make extra allowance. 1467. Payment of allowance. 1468. Property set apart, how apportioned between widow and children. 1469. Estates less than fifteen hundred dollars to go to wife and child; those less than three thousand to be summarily administered. 1470. When all property to go to children. SEC. 1464. ( 120.) When a person dies leaving a widow or minor children, the widow or children, until letters are decedent's granted and the inventory is returned, are entitled to remain in possession of the homestead, of all the wearing apparel of the family, and of all the household furniture of the decedent, and are also entitled to a reasonable provision for their support, to be allowed by the probate judge. Statutes of 1851, pp. 452-3, § 120. All property exempt tion to be set apart SEC. 1465. ( 121.) Upon the return of the inventory, from execu- or at any subsequent time during the administration, the court or the probate judge may, on his own motion or on petition therefor, set apart for the use of the surviving husband or wife, or the minor children of the decedent, all property exempt from execution, including the homestead for use of |