be properly acknowledged by her. (McLeran v. Benton, 43 Cal. 467; Leonis v. Lazzarovich, 55 Cal. 52.)

2. The case comes fully within the rule declared in Camp v. Grider, 62 Cal. 20. The correctness of that decision has not since been questioned, and the case was cited with approval in Wise v. Williams, 72 Cal. 547.

The distinctions between that case and this are immaterial. It is true, the action here was pending, and a notice of its pendency had been filed, when Manning died, but that fact did not release the plaintiff from the necessity of presenting his claim. The code declares that in such case the claim must be presented for allowance or rejection, and that "no recovery shall be had in the action unless proof be made of the presentations required." (Code Civ. Pror., sec. 1502.)

So the fact that the court, by its order, set aside the property on which the homestead had been declared "for the use of the family," and not expressly to Mrs. Manning, is of no consequence. The property was community property, and on the death of the husband the title vested absolutely in the surviving wife. (Code Civ. Proc., sec. 1474.) The form of the order was, therefore, immaterial, as it did not and could not change, or affect in any way, the widow's rights, but simply excluded the property from administration.

The court found "that there are not now, nor were there ever, any assets. . that could be charged with or subject to the payment of said note and mortgage, or any part thereof, except said land and premises" mortgaged. In Camp v. Grider it is said: "The purpose of the legislature in providing, by section 1475, that if there be subsisting liens or encumbrances on the homestead, the claims secured thereby must be presented and allowed as other claims against the estate, was undoubtedly to preserve the homestead if possible." This being so, it is argued that section 1475 does not apply here. But it does not appear what was the condition of the

Grider estate, nor if it had appeared, do we see how the decision could have been thereby affected. The provision of the section is general, that claims secured by liens or encumbrances on the homstead, selected and recorded prior to the death of the decedent, must be presented and allowed as other claims against the estate. The whole matter was under the control of the legislature, and we are not authorized to nullify the plain letter of the law because we can see no good reason for making it applicable to a case like this. As well might any mortgagee claim under section 1500 that he could maintain his action without presenting his claim, and without waiving all recourse against the other property of the estate, if he could show that there was no other property belonging to the estate.

It is next earnestly insisted that the decision in Camp v. Grider is not sound law, and ought to be overruled. But after carefully reading the able argument of counsel, we are unable to reach their conclusion. It seems to us that the decision is a correct exposition of the sections of the code under review, and that it must therefore be upheld and followed.

3. It is contended that the notice to creditors was insufficient, and that plaintiff lost none of his rights by his failure to present his claim within the time limited. This contention is based upon the fact that the notice specified the office of his attorneys in the city of Modesto as the place where claims were to be presented to the administrator, "the same being his place for the transaction of the business of the said estate."

The code declares that every executor or administrator must cause to be published a notice to the creditors of the decedent, requiring them to present their claims to the executor or administrator "at the place of his residence or business, to be specified in the notice. (Code Civ. Proc., sec. 1490.)

The administrator resided and was engaged in the

business of cabinet-making at Modesto, and his attorneys, Wright and Hazen, had their office there. Modesto was a small town or city, and it is not pretended that plaintiff did not know of the notice, or that he could not readily have found the administrator and presented his claim if he had chosen to do so. The simple question then is, Did the fact that the office of the administrator's attorneys, instead of his own workshop or dwelling-house, was designated as the place for the presentation of claims, destroy the effect of the notice, or in other words, make it no notice? We do not think it did. It seems to us that the words "place of his business" should be construed to include the place where the administrator transacts the business of the estate, though he may be engaged in transacting some kind of business elsewhere. To hold otherwise would often render it quite inconvenient for creditors to present their claims at all. For example, the administrator may live and be carrying on a farm many miles distant from the county seat, where most or all of the creditors reside, or he may live and be employed in a workshop in some obscure part of a city, not easily accessible.

No authorities are cited upon this point by either side, and we are not aware that any can be found. The language of the code should, therefore, be liberally construed so as to promote justice, and subserve the convenience and best interests of all parties concerned.

In our opinion, the notice involved in this case was sufficient, and it results that the judgment and order appealed from should be affirmed.

FOOTE, C., and HAYNE, C., concurred.

The COURT.-For the reasons given in the foregoing opinion, judgment and order are affirmed.

[No. 12415. In Bank.-April 22, 1889.]

MARSHALL STAPLES, RESPONDENT, v. J. M. CONNOR, APPELlant.

STATUTE OF LIMITATION-SALE BY ADMINISTRATOR-Minor HEIRSPUBLIC ADMINISTRATOR-OFFICIAL BOND OATH OF OFFICE.-The provision of section 190 of the Probate Act (section 1573, Code of Civil Procedure) for a three-year limitation of actions for the recovery of real property sold by an executor or administrator does not bar minor heirs, if the person who assumed to act as administrator had not taken out letters of administration, and had not given an official bond as public administrator, and had not taken the oath of office as such.

APPEAL from a judgment of the Superior Court of Solano County.

The facts are stated in the opinion.

J. F. Wendell, and George A. Lamont, for Appellant.

Conceding the invalidity of the probate sale, the administrator was entitled to bring an action to set it aside. When he neglected to do so until his right of action was barred under the statute of limitations, the heir was also barred, even though he was a minor, or under other disability, at the time the action accrued to the administrator. (Probate Act, secs. 190, 191; Code Civ. Proc., secs. 1573, 1574; Meeks v. Vassault, 3 Saw. 210; Meeks v. Olphert, 100 U. S. 568; McLeran v. Benton, 73 Cal. 342; Tynan v. Walker, 35 Cal. 634; 95 Am. Dec. 152; Hibernia S. & L. Soc. v. Conlin, 67 Cal. 180.) The limitations of the Probate Act apply to all sales attempted to be made under the act, void as well as voidable. (Harlan v. Peck, 33 Cal. 528; 91 Am. Dec. 653; Ganahl v. Soher, 68 Cal. 95.) Hewitt was at least the de facto public administrator, and his title to that office cannot be collaterally questioned. (People v. Sassovich, 29 Cal. 485; People v. Provines, 34 Cal. 523; Plymouth v. Painter, 17 Conn. 585; 44 Am. Dec. 574.)

John F. Ellison, for Respondent.

The limitation prescribed by section 190 of the Probate Act did not run against the plaintiff, he being a

minor. (Probate Act, sec. 191; Code Civ. Proc., sec. 1574; Crosby v. Dowd, 61 Cal. 557; Ganahl v. Soher, 68 Cal. 97; Pryor v. Downey, 50 Cal. 389; 19 Am. Rep. 656; McNeil v. Congregational Society, 66 Cal. 106.)

HAYNE, C.-Ejectment. The respondent, who was a minor until within a year from the commencement of the action, claims as heir of the former owner. The appellant claims as the purchaser at an administrator's sale made in 1870.

It is virtually conceded that the sale was void, and we think there can be no doubt on the subject. The position of the appellant is, that the action was barred by section 190 of the Probate Act, and the corresponding section of the Code of Civil Procedure. (Sec. 1573.) And except for the reason stated below, we should be inclined to think that this is so. (See Meeks v. Vassault, 3 Saw. 206; Meeks v. Olpherts, 100 U. S. 564; McLeran v. Benton, 73 Cal. 342, 343.) These cases proceed upon the principle that the administrator represents the heirs (minors as well as others), and that when he is barred by limitation, they are also. But it is manifest that if there was no administrator, the principle upon which the above decisions rest has no application.

Now, in the present case (which comes up without any of the evidence), the sale was by one who assumed to act as administrator, but who was not such. He had not taken out letters of administration upon the estate, and he was not entitled to act as public administrator. If he had been really the public administrator, it would not have been necessary for him to take out letters upon the particular estate; for the statute in force at that time provided, in relation to counties other than San Francisco and Sacramento,