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ROBINSON V. FAIR, 128 U. S. 53 (1888)

U.S. Supreme Court

Robinson v. Fair, 128 U.S. 53 (1888)

Robinson v. Fair

No. 18

Argued April 9-10, 1888

Decided October 22, 1888

128 U.S. 53


The state constitution in force in California prior to 1880 authorized the legislature to confer upon probate courts jurisdiction of proceedings for the partition of real estate, as ancillary or supplementary to the settlement and distribution of the estates of deceased persons coming within the cognizance of such courts.

The Legislature of California, under the constitution in force prior to 1880, conferred upon the probate courts of the state power, after final settlement of the accounts of a personal representative and after a decree of distribution, defining the undivided interests of heirs in real estate in the handy of such representative (neither the title of the decedent nor the fact of heirship being disputed), to make partition of such estate among the heirs so as to invest each separately with the exclusive possession and ownership of distinct parcels of such realty, as against coheirs, and such a grant of power does not appear to be foreign to the jurisdiction usually pertaining to such tribunals in this country.

The decisions of the Supreme Court of California examined and shown to be in harmony with the two points above stated.

The difference between distribution and partition of real estate among heirs pointed out.

A circuit court of the United States has no jurisdiction to set aside a decree of partition in a state probate court authorized by law to make it, nor can it refuse to give full effect to the decree unless the probate court was without jurisdiction in the case.

The jurisdiction of a probate court to make partition of real estate of a decedent among his heirs is not defeated by the fact that the proceedings for it were originated by a petition of the administratrix, who was also an heir at law, asking for a settlement of her accounts as administratrix and for the adjudication of her rights as heir at law by partition of the real estate, the record showing that the court made the decree for the final settlement and distribution of the estate before it entered upon the question of partition.

The record in this case does not support the contention that proper notice of the proceedings in the probate court for the partition of the real estate was not given to the minor children.

At the time when the proceedings took place which form the subject of controversy in this suit, there being no provision of law in force in California requiring the appointment of guardians ad litem of infants in probate proceedings, it was sufficient for them to be represented in such proceedings by an attorney appointed by the court for that purpose.

Page 128 U. S. 54

This case involved the title to a fifty-vara lot in the City of San Francisco, numbered two hundred and five on its official map. It was a part of the separate estate of Horace Hawes, senior, who died intestate in that city on March 12, 1871, leaving as his only heirs at law, his widow Caroline Hawes, and two minor children; Horace Hawes, Junior, born March 22, 1859, and Caroline C. Hawes, born August 26, 1864. In December, 1871, the widow qualified as administratrix in the Probate Court of the City and County of San Francisco. In that capacity, she took possession, as was her duty under the law of California, of the entire estate of her deceased husband, and held it subject to the control of that court. Civil Code, 1384; Code of Civil Procedure, § 1581.

In addition to the above lot, the intestate was the owner at the time of his death of a large amount of property, principally real estate, in the Counties of San Francisco and San Mateo, some of which was community property, and the residue separate property. By the law of California, upon the death of the husband intestate, one-half of the community property goes to the surviving wife and the other to his descendants equally, or, in the absence of descendants, according to the right of representation, and in the same manner as the separate property of the husband, and upon the death of the husband, leaving a widow and more than one child living, or the lawful issue of one or more deceased children, one-third of his estate, not otherwise limited by marriage contract, goes to the widow, and the remainder in equal shares to his children and to the lawful issue of any deceased child by right of representation. Civil Code, §§ 163, 164, 687, 1386, 1402.

The estate was divided by proceedings commenced, February 18, 1875, by Mrs. Hawes, administratrix, in the Probate Court of the City and County of San Francisco. They were instituted for the purpose of obtaining a final settlement of her accounts, and also the distribution and the partition of the estate. Such a settlement was had, and, after a decree of distribution was passed, the court proceeded to make partition between the heirs, according to their respective interests, of the various parcels of real estate remaining in the hands of the

Page 128 U. S. 55

administratrix. By the final decree of partition, rendered April 19, 1875, certain property, including the above lot, was set apart to the widow, while other lands in that county, and in San Mateo County, were allotted to the children.

By deed of May 24, 1875, and for the consideration of three hundred thousand dollars, the widow conveyed the above lot to James C. Flood. The latter was in possession under his purchase until August 21, 1876, when he sold and conveyed, for a like sum, to James G. Fair, who, prior to the present litigation, put upon the lot substantial improvements of the value of several hundred thousand dollars.

On the 6th of April, 1881, Caroline C. Hawes intermarried with James A. Robinson, who had previously, February 24, 1881, qualified as her guardian.

The present suit was brought, June 6, 1882, in the names of Mrs. Robinson (by her husband as guardian) and Horace Hawes, Junior, to recover two undivided thirds of said fifty-vara lot. In the progress of the cause, Mrs. Robinson was joined with her brother as an original plaintiff in her own right. The defendant claimed title under the decree of partition in the probate court. That decree, the plaintiffs insisted, was void. A jury having been waived, there was judgment for the defendant, the court below holding that the proceedings in the probate court were in conformity in all respects with law.

The foregoing statement forms part of the opinion of the court in this case. The court below gave no opinion. In addition to that statement, the Justice who delivered the opinion in this Court has kindly furnished the following summary of other facts forming essential parts of the case:

On the 18th of February, 1875, the real estate of the decedent, remaining in the hands of the administratrix, consisted of what is known as Mission Block No. 44, the southeasterly part of Mission Block No. 8, Mission Block No. 2, and the fifty-vara lot No. 205, in San Francisco; also the Redwood farm and certain villa lots in San Mateo County. The two parcels first named were acquired in 1860, after the marriage of Mrs. Hawes with the intestate, and were therefore "common"

Page 128 U. S. 56

property. The other parcels were the separate property

of the decedent. All those parcels were in the hands of the administratrix because, by the law of California, a personal representative, whether executor or administrator, is required to take possession of all the estate, real and personal, of the decedent, and his possession for the purpose, among other things, of partition is that of the heirs or devisees, although their possession is subject to his for purposes of administration. Code of Civil Procedure § 1581.

On the day last named, Caroline Hawes instituted proceedings in the Probate Court of the City and County of San Francisco to obtain a final settlement of her accounts and to have a distribution and partition of the estate remaining in her hands, as administratrix, between herself and the minor children according to their respective rights and pursuant to the statute in such cases made and provided. To that end, she prayed that an order be made

"directing that all persons interested in this estate appear before this Court at a time and place to be specified, not less than four, or more than ten weeks from the time of making said order, to show cause why an order should not be granted directing that partition be made in said estate, and that distribution be made of the estate of Horace Hawes, deceased, and that partition be made of the real estate thereof, among the persons entitled thereto, or if the same cannot otherwise be fairly divided, that the same be sold and the proceeds distributed among those entitled, or that such other or further or different order may be made as will be just and proper in the premises."

Upon that petition, an order was made that all persons interested in the estate appear before the court on the 23d of September, 1875, to show cause why the final account filed by the administratrix should not be settled, allowed, and approved. That order also declares:

"And whereas said account is for final settlement, and it duly appearing that said estate is ready for distribution and that, upon confirmation of said final account, distribution and partition of all said estate to all persons entitled thereto has been duly demanded: "

Page 128 U. S. 57

"It is further ordered that all persons interested in said estate be and appear before said court at the time and place aforesaid, without further notice or proceeding therefor, and then and there show cause, if any they have, why distribution of the residue of said estate should not be made among the heirs at law of said deceased according to law and the respective rights of all the parties, and also at the same place, immediately after decree of distribution of said estate is made, without further notice, to show cause why said court shall not make an order appointing commissioners, or a commissioner, as it may seem best, to make partition and division of said estate among the heirs at law of said deceased according to the respective rights of the parties and the decree of distribution, and to set aside to each his and her share according to the proportions decreed to him, her, or them, or to report his or their inability to make partition of the whole or certain part or parts of said estate without sale, or without prejudice or inconvenience, and also to report and find the true value of all said real estate belonging to said estate."

"And it is further ordered that notice of the foregoing be given by publication and that a copy hereof be published once a week for four successive weeks before said 23d day of March, 1875, in the Daily Examiner, a daily newspaper printed and published in said city and county."

Subsequently the probate court made the following order:

"Whereas Chas. H. Sawyer, a competent attorney at law, has hitherto represented Horace Hawes and Caroline C. Hawes, minors, heirs of said deceased:"

"It is now by the court here ordered that said Chas. H. Sawyer, an attorney at law and of this court, be and is hereby appointed to represent said minors, Horace Hawes and Caroline C. Hawes, in the partition and distribution of said estate and all other proceedings, when all of the parties in said estate or said heirs are required to be notified thereof."

"Done in open court this 29th day of March, 1875."

On the same day, a decree was passed,

"J. C. Bates appearing on behalf of said administratrix, and Chas. H. Sawyer, Esq., appearing on behalf of Horace Hawes and Caroline

Page 128 U. S. 58

C. Hawes, children of said deceased,"

which found and declared: that it appeared to the satisfaction of the court that due and sufficient notice of the time and place of hearing of said petition for distribution and partition had been given, as required by law; that the final accounts of the administratrix had been duly settled by the court, and that the estate was "in proper condition for distribution and partition, and to be finally closed;" that certain portions of said real estate were common property, and the residue was separate property; that the widow was entitled to an undivided half, and the two children together to an undivided half, of the former, while the widow and the children were each entitled to an undivided one-third of the latter. It was adjudged and decreed that all the acts and records of the administratrix, appearing upon the records of the estate, be approved and confirmed, and that the residue of said estate "be and the same is hereby distributed" as follows: one undivided half of Mission Block No. 44, and the southeasterly part of Mission Block No. 8, less a certain school lot, to Caroline Hawes, and the other undivided half to the two children, and an undivided third to the widow of Mission Block No. 2, the fifty-vara lot No. 205, and of the lands in San Mateo County, and the remaining two-thirds thereof, undivided, to the children; share and share alike. The decree concludes with a particular description of the several parcels of land so distributed.

The judgment roll of the proceedings in the probate court also contains this order:

"The petition of Caroline Hawes, administratrix and heir at law of the estate of Horace Hawes, deceased, for partition of said estate according to law coming on regularly to be heard this 29th day of March, 1875, immediately after the decree distributing said real estate being made, J. C. Bates appearing for said petitioner, and Chas. H. Sawyer, Esq., appearing for and representing Horace Hawes and Caroline C. Hawes, minor heirs of said deceased, and upon consent in open court of all parties interested to the appointment of James L. King, sole commissioner for the purposes of partition and division of the estate of said deceased: "

Page 128 U. S. 59

"And said court deeming it just and proper that said James L. King be appointed sole commissioner for such purposes, and all and singular the law and the premises being by the court here seen, heard, understood, and fully considered:"

"Whereupon it is now by the court here ordered, adjudged, and decreed that partition and division of said real estate, described in the decree of distribution herein, be made in accordance with the rights of the parties as determined by said decree of distribution."

"And it is further ordered that the said James L. King be and he is hereby appointed sole commissioner for that purpose, and whose duty it shall be to make partition and division of said real estate described in said decree of distribution in accordance with the rights and interests of the respective parties as therein determined, and make report of the proceedings and partition in writing to this court."

"Done in open court this twenty-ninth day of March, A.D. 1875."

On the second of April, 1875, Charles H. Sawyer, as said attorney for the minor heirs, and J. C. Rates, as attorney for the widow and administratrix, acknowledged service of a written notice from King, as commissioner, that he would, on the eighth day of that month and year at his office, in the City of San Francisco,

"proceed to make partition of the property described in the decree of distribution in [of] said estate, in accordance with the rights of respective parties as therein described."

On the 13th of April, 1875, the commissioner made his report, in which it is stated that, in making the division and partition of the property, he was attended by Mr. Sawyer, as attorney for the minor heirs of the decedent, and by Mr. Bates, as attorney for the widow; that after a thorough examination of the premises, he made the partition and division, the estate in each county being divided separately among all the heirs as if there were no other estate to be divided. He allotted to the widow and the two children each an undivided one-third of all the land in San Mateo County; to the widow, one-half, and to the children, one-fourth each, of Mission Block No. 44, in

Page 128 U. S. 60

the City of San Francisco, each part being described by metes and bounds; to the widow, the southeasterly part of Mission Block No. 8, in the same city; to the children, each, one-half of Mission Block. No. 2, in San Francisco, each part being described by metes and bounds, and to the widow, the whole of said fifty-vara lot, being 1,372 feet square. This report was confirmed on the 19th of April, 1875, the order of confirmation reciting, among other things, the appearance of Bates for the widow and of Sawyer as the attorney appointed to defend for the minor heirs.

Chapter X of the Code of Civil Procedure treats "of accounts rendered by executors and administrators, and of the payment of debts." Among the provisions in that chapter is one to the effect that if the account rendered by an executor or administrator

"is for a final settlement, and the estate is ready for distribution and partition, the notice thereof required to be published must state these facts, and on confirmation of the final account, distribution and partition of the estate to all entitled thereto must be immediately had, without further notice or proceeding."

The succeeding chapter relates to the "Partition, Distribution, and Final Settlement of Estates." By § 1665 it is provided that

"Upon the final settlement of the accounts of the executor or administrator, or at any subsequent time upon the application of the executor or administrator or of any heir, legatee, or devisee, the court must proceed to distribute the residue of the estate in the hands of the executor or administrator, if any, among the persons who by law are entitled thereto."

"Section 1666. In the order or decree, the court must name the persons and the proportions or parts to which each shall be entitled, and such persons may demand, sue for and recover their respective shares from the executor or administrator, or any person having the same in possession. Such order or decree is conclusive as to the rights of heirs, legatees, or devisees, subject only to be reversed, set aside, or modified on appeal."

"Section 1668. The order or decree may be made on the

Page 128 U. S. 61

petition of the executor or administrator, or of any person interested in the estate. Notice of the application must be given by posting or publication, as the court may direct, and for such time as may be ordered. If partition be applied for as provided in this chapter, the decree of distribution shall not divest the court of jurisdiction to order partition unless the estate is finally closed."

"Section 1675. When the estate, real or personal, assigned by the decree of distribution to two or more heirs, devisees, or legatees is in common and undivided, and the respective shares are not separated and distinguished, partition or distribution may be made by three disinterested persons, to be appointed commissioners for that purpose by the probate court or judge, who must be duly sworn to the faithful discharge of their duties. A certified copy of the order of their appointment, and of the order or decree assigning and distributing the estate, must be issued to them as their warrant, and their oath must be endorsed thereon. Upon consent of the parties or when the court deems it proper and just, it is sufficient to appoint one commissioner only, who has the same authority and is governed by the same rules as if three were appointed."

"Section 1676. Such partition may be ordered and had in the probate court on the petition of any person interested. But before commissioners are appointed or partition ordered by the probate court as directed in this chapter, notice thereof must be given to all persons interested who reside in this state, or to their guardians and to the agents, attorneys or guardians, if any in this state or such as reside out of the state, either personally or by public notice, as the probate court may direct. The petition may be filed, attorneys, guardians, and agents appointed, and notice given at any time before the order or decree of distribution, but the commissioners must not be appointed until the order or decree is made distributing the estate."

"Section 1677. If the real estate is in different counties, the probate court may, if deemed proper, appoint commissioners for all, or different commissioners for each county. The estate in each county must be divided separately among the heirs,

Page 128 U. S. 62

devisees, or legatees, as if there was no other estate to be divided, but the commissioners first appointed must, unless otherwise directed by the probate court, make division of such real estate, wherever situated within this state."

"Section 1678. Partition or distribution of the real estate may be made as provided in this chapter, although some of the original heirs, legatees, or devisees may have conveyed their shares to other persons, and such shares must be assigned to the person holding the same in the same manner as they otherwise would have been to such heirs, legatees, or devisees."

"Section 1679. When both distribution and partition are made, the several shares in the real and personal estate must be set out to each individual in proportion to his right, by metes and bounds, or description, so that the same can be easily distinguished, unless two or more of the parties interested consent to have their shares set out so as to be held by them in common and undivided."

"Section 1680. When the real estate cannot be divided without prejudice or inconvenience to the owners, the probate court may assign the whole to one or more of the parties entitled to share therein, who will accept it, always preferring the males to the females, and among children preferring the elder to the younger. The parties accepting the whole must pay to the other parties interested their just proportion of the true value thereof or secure the same to their satisfaction, or, in case of the minority of such party, then to the satisfaction of his guardian, and the true value of the estate must be ascertained and reported by the Commissioners. When the commissioners appointed to make partition are of the opinion that the real estate cannot be divided without prejudice or inconvenience to the owners, they must so report to the court, and recommend that the whole be assigned as herein provided, and must find and report the true value of such real estate. On filing the report of the commissioners and on making or securing the payment as before provided, the court, if it appears just and proper, must confirm the report, and thereupon the assignment is complete, and the title to the whole of such real estate vests in the person to whom the same is so assigned. "

Page 128 U. S. 63

"Section 1681. When any tract of land or tenement is of greater value than anyone's share in the estate to be divided, and cannot be divided without injury to the same, it may be set off by the commissioners appointed to make partition to any of the parties who will accept it, giving preference as prescribed in the preceding section. The party accepting must pay or secure to the others such sums as the commissioners shall award to make the partition equal, and the commissioners must make their award accordingly, but such partition must not be established by the court until the sums awarded are paid to the parties entitled to the same, or secured to their satisfaction."

"Section 1682. When it appears to the court, from the commissioners' report that it cannot otherwise be fairly divided, and should be sold, the court may order the sale of the whole or any part of the estate, real or personal, by the executor or administrator, or by a commissioner appointed for that purpose, and the proceeds distributed. The sale must be conducted, reported, and confirmed in the same manner and under the same requirements provided in article IV, Chapter VII of this Title."

"Section 1683. Before any partition is made or any estate divided, as provided in this chapter, notice must be given to all persons interested in the partition, their guardians, agents, or attorneys, by the commissioners, of the time and place, when and where they shall proceed to make partition. The commissioners may take testimony, order surveys, and take such other steps as may be necessary to enable them to form a judgment upon the matters before them."

"Section 1684. The commissioners must report their proceedings and the partition agreed upon by them to the probate court in writing, and the court may, for sufficient reasons, set aside the report and commit the same to the same commissioners, or appoint others, and when such report +s finally confirmed, a certified copy of the judgment or decree of partition made thereon, attested by the clerk under the seal of the court, must be recorded in the office of the recorder of the county where the land lies. "

Page 128 U. S. 64

"Section 1685. When the probate court makes a judgment or decree assigning the residue of any estate to one or more persons entitled to the same, it is not necessary to appoint commissioners to make partition or distribution thereof unless the parties to whom the assignment is decreed, or some of them, request that such partition be made."

"Section 1686. All questions as to advancements made or alleged to have been made by the decedent to his heirs may be heard and determined by the probate court, and must be specified in the decree assigning and distributing the estate, and the final judgment or decree of the probate court, or, in case of appeal, of the Supreme Court, is binding on all parties interested in the estate. "

Page 128 U. S. 76

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