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which appears in Italics may well be doubted, but, in any event, we are not inclined to apply it to a case of this kind, where the question arises between the husband, who made the loan, and the wife, who received it, and where such a construction of the contract between them would defeat the intention of the only persons who were parties to the transaction, and who alone can be affected by a decision of the question. The parties dealt with each other as if they were unmarried. There was no intention that the husband should, by virtue of the payment made by him, become a part owner in the land. The intention was, that it should be her separate property, and so it must be held to be: Schuler v, Savings & L. Society, 64 Cal. 397; Taylor v. Opperman, 79 Cal. 468.

As to the two thousand dollars paid by the wife out of her separate estate, there can be no question as to her having a separate estate in the land to that extent. Up to the time, therefore, that the three thousand dollars was borrowed, the money invested in the property was her separate estate, and the defendant had no interest in it. This being so, the money borrowed was borrowed "on the faith of her existing separate property, and secured by mortgage," and even under the strict rule laid down in Schuyler v. Broughton, 70 Cal. 282, the money thus realized became her separate property, and the one thousand dollars used to pay off and satisfy the mortgage standing against the property gave her a further separate estate therein to that extent. The fact that the defendant joined in the note and mortgage given to secure the repayment of the money borrowed does not affect the question. The real security was her separate property; the one thousand dollars was invested in the property, and the balance of the money went to her, and was legally hers: Martin v. Martin, 52 Cal. 235; Beaudry v. Felch, 47 Cal. 183. It is equally clear to us that the amount of $1,150, paid by the defendant as the balance due on the property out of his own separate funds, accrued to the interest of the plaintiff in the land. Up to that time, the land was wholly her separate estate. It was the intention and understanding of the parties that she should pay for the property out of her separate estate. The husband could not, by voluntarily paying the balance due on the property, convert it into community property to that extent. His payment, being voluntary, and without her knowledge or consent, could give him no right or interest in the property, or change it from separate to community property: Morgan v. Lones, 80 Cal. 817.

To give it such an effect would be to violate the express understanding and intention of the parties, and hold the plaintiff liable for an obligation which she never incurred. This we cannot do: Moulton v. Lour, 52 Cal. 83; Curtis v. Parks, 55 Cal. 106. It must rather be presumed that it was the intention of the husband to advance the money paid for the benefit of the wife's separate estate, and that it was intended to accrue to her benefit: Peck v. Brummagim, 31 Cal. 441; 89 Am. Dec. 195; Swain v. Duane, 48 Cal. 358. In dealings of this kind, the intention of the parties is of paramount importance, where the question as to the effect of a conveyance of real estate arises as between themselves; and where it appears that a conveyance to the wife was intended, as between the husband and wife, to vest the title to the property in her as ber separate estate, the courts will respect the intention of the parties, and, as between themselves, uphold her title to the property, although the legal effect of the purchase and conveyance would, independent of such intention, vest the title in the community: Woods v. Whitney, 42 Cal. 358; Peck v. Brummagim, 31 Cal. 441; 89 Am. Dec. 195; Higgins v. Higgins, 46 Cal. 263; 2 Devlin on Deeds, secs. 1168, 1169. For these reasons, we are constrained to hold that the whole of this property was the separate estate of the plaintiff, that the whole of the purchase-money realized from its sale belonged to her, and that she was entitled to recover the full amount thereof collected by the defendant and converted to his own use.

Judgment reversed, with instructions to the court below to modify its conclusions of law in conformity to this opinion, and render judgment in favor of the plaintiff accordingly.

HUSBAND AND WIFE - SEPARATE ESTATE. The general rule is, that property acquired during marriage is presumed to belong to the community: Morris v. Hastings, 70 Tex. 26; 8 Am. St. Rep. 570; Hardın v. Sparks, 70 Tex. 420; Hurley v. Lockett, 72 Tex. 262; Dooley v. Mont.jomery, 72 Tex. 4:9; Morgan v. Lones, 78 Cal. 58; Finn v. Williamson, 75 Tex. 336; Cosgrove v. Creditors, 41 La Ann. 274; but where it is established conclusively that tho property was purchased with the separate money of the wife, it remains her separate property: Love v. Robertson, 7 Tex. 6; 66 Am. Dec. 41, and note; Torrey v. Oameron, 73 Tex. 583; Von Glahn v. Brennan, 81 Cal. 261; Gage v. Downey, 79 Cal. 140; notwithstanding the husband may have advanced money to make payments for the wife: Morgan v. Lones, 80 Cal. 317. The presumption that property acquired during marriage belongs to the com. manity may bo overcome by showing the intention of the husband that the property conveyed to his wife should be her separate property: Note to Cooke V. Bremond, 86 Am. Dec. 640, 641; Ullmann v. Jasper, 70 Tex. 447. Whatover is once shown to be separate property remains such through all its mo. tations, and the profits thereof acquire the same character: In re Bauer, 79 Cal. 304. See Batte v. Beck, 70 Tex. 754, and Peet v. Railway, 70 Tex. 523, for instances of property, acquired and held by the wife during marriage, which was her separate property, not community.

No particular words are necessary to create a separate estate in a married woman; it being necessary only that an intention to vest the property in the wife to the exclusion of her husband shall be apparent: Bank Of Louisville v. Gray, 84 Ky. 565; Noland v. Chambers, 84 Ky. 516.




TOR ASSETS IN A FOREIGN COUNTRY. - If an executor in this state is also ancillary administrator in a foreign country, and, as such, has within his control personal assets in such country, which he refuses or willfully neglects to bring into this, he may be charged therewith in the

settlement of his accounts in this state. CONFLICT OF LAW8. - IT IS THE DUTY OF A DOMICILIARY EXECUTOR to

gather in and account for foreign assets of his testator, to the extent of his ability to do so, and the court of the domicile may compel him to ac

count for his willful neglect to perform such duty. CONFLICT OF LAWS. — IF THE ESTATE OF A DECEDENT IS SITUATE. IN TWO OR

More COUNTRIES, and his executor incurs expenses of administration, they should be paid out of that part of the estate in the administration of which they were incurred, and not out of the part of the estate situ. ated in another country.

Thomas I. Bergin, and Sullivan and Sullivan, for the appellant.

Smith, Wright, and Pomeroy, and John A. Wright, for the respondents.

VANCLIEF, C. This is an appeal by the executor of said estate, Vicente Cagigal Pezuela, from an order of the superior court of the city and county of San Francisco settling his final accounts. The deceased, a native of Spain, died in Spain on the fifth day of April, 1887, leaving a will executed in Spain according to the laws of that kingdom, and also in compliance with the laws of this state. At the time of his death he was a resident of the city and county of San Francisco, in this state, where he left property of the value of about ninety-seven thousand eight hundred dollars. He also left personal property in Spain of the value of about fifteen thousand dollars, and one half of a house and lot, and also left property in Mexico. The will disposed of all his property to his seven children and four grandchildren, and appointed the appellant (who was his son-in-law, and a native and resident of Spain) executor, without bond or other security for the performance of the trust. There was no evidence of the laws of Spain, except the testimony of the appellant, who said he was not a Spanish lawyer, but testified that no other letters testamentary than a duly authenticated copy of the will were required by the laws of Spain to authorize him to administer the Spanish assets of the estate, although he would be required to render a final account to a Spanish tribunal, in order to be discharged from his trust. The will authorizes the executor to take possession of all kinds of property, credits, claims, and shares; to liquidate all accounts, and to approve them or not, as he sees fit; to claim, receive, collect, or pay whatsoever shall be owing the estate, or due by the same, of any nature whatsoever, wheresoever situated, giving and signing therefor the proper vouchers; to compound or settle differences which may arise, or submit them to friendly arbitration; to sell or exchange what may be deemed absolutely neceseary, receiving the consideration therefor, and when exchanging, to make up any difference. In all matters in which the executor cannot personally act, he may give power of attorney, general or special, “with power of revocation and appointment of new attorneys in fact, and to the formation of an inventory, appraisement, accounts, and partition, carrying out said changes by themselves, without submitting or reporting the same to any tribunal of justice, this being expressly prohibited ”; basing said prohibition on his confidence that his executor will do nothing but what is just.

The appellant accepted the trust; and having received from the proper officers of Spain duly authenticated copies of the will, and a proper certificate of the death of the testator, he proceeded immediately to collect and take possession of all that part of the assets of the estate which were then in Spain, and converted all the personal property into money. He then, with his family, removed to this state, for the purpose of residing here while administering the California assets. He arrived in California in June, 1887, and on the twenty-second day of that month filed in the office of the clerk of the superior court of the city and county of San Francisco an authenti. cated copy

of the will, which was afterwards admitted to probate by that court, and the appellant was appointed executor, and he qualified to act as such on the twenty-sixth day of September, 1887.

Thus he became the domiciliary executor of the will, and at the same time was invested with the character of ancillary executor of the assets in Spain. On October 17, 1887, in obedience to section 1443 of the Code of Civil Procedure, he filed an inventory of all the property of the estate, including that situate in Spain. On February 13, 1889, the appellant filed his final account, in which he failed to charge himself with the assets in Spain, and prayed that the account be settled and allowed, and that the residue of the estate be distributed. In due time, two of the devisees and legatees named in the will filed objections to the account, on several grounds, but principally on the ground that the executor had failed to charge himself with the assets of which he, in his character of ancillary administrator, took possession in Spain. It appears that all the devisees resided in California and Mexico, and that all were represented in the proceedings in the superior court. After hearing the contest, the court charged the executor with $9,847.29, which it found to be the residuum of the Spanish assets after deducting all proper demands and charges against the estate in Spain. The court also disallowed three small charges of the executor for traveling expenses from San Francisco to the city of Hermosillo, in Mexico, amounting to $315.

1. Counsel for appellant contended that the court erred in charging the executor with the residuum of the Spanish assets, for the alleged reason that the administration of those assets had not been clored in Spain. This presents the principal question, and the only question of any difficulty to be decided. The evidence of the facts upon which the court acted consists of the will, petitions and inventories filed by the executor, and his testimony at the trial and on a former occasion. The executor was examined and cross-examined at great length, and it is impracticable to epitomize his testimony by stating the mere substance of it so as to show its full effect and bearing upon his motives and intention.

I think, however, that his testimony, in connection with the documentary evidence, substantially tends to prove and is sufficient to justify findings of the following facts: 1. That the residuum of the assets in Spain had been under his active control, and at his disposal, as the domiciliary executor, during the term of at least six months before be filed his

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