ancy and Partition, Sec. 423; 1 Fonblanque's Eq. 18, note.

Partition jurisdiction being conferred by the Constitution upon the district court, such jurisdiction was exclusive in that court.

The grant of probate jurisdiction is in these words:

'The County Judges shall also hold in their several counties Probate Court, and perform such duties as Probate Judges as may be prescribed by law."

Cal. Const. 1863, art. VI, sec. 8.

No such powers can be exercised until and except so far as expressly authorized by statute. Bush v. Lindsey, 44 Cal. 121; Rosenberg v. Frank, 58 Cal. 402.

Similar clauses have been construed as not empowering the legislature to extend the powers of a Probate Court beyond the proper and established bounds of the established probate jurisdiction, as known to American and English jurisprudence.

Ferris v. Higley, 87 U. S. 20 Wall. 375 (22: 883); Cast v. Cast, 1 Utah, 112; Locknane v. Martin, McCahon (Kan.) 60; Moore v. Koubly, 1 Idaho, 55.

Freeman, Co-tenancy and Partition, secs. 396, 402; Co. Litt. 169 a; Allnatt on Partition, 124-129.

The exercise of jurisdiction over wills of real estate does not enlarge the probate jurisdiction. Williams on Exrs. 6th Am. ed. 454, 388, 389. The power exercised by probate courts tc partition, wherever it exists is based on statute. Alabama; Laws of Ala. 1823, p. 333, sec. 43, Ala. Code, 1852, sec. 670; Rev. Code Ala. 1867, sec. 3105; Bryant v. Stearns, 16 Ala. 307; Coker v. Pitts, 37 Ala. 692.

Connecticut; Stat. of Conn. 1838, p. 234, Tit. 31, Ch. 1, sec. 29; Stat. of Conn. 1854, p. 502, sec. 53; Gates v. Treat, 17 Conn. 388;

Indiana; Rev. Stat. 1843, pp. 811, 812, secs. 114, 115, 116; Rev. Stat. Ind. 1881, secs. 1186, 1187; Shull v. Kennon, 12 Ind. 34; Bennet v. East, 7 Ind. 174.

Louisiana; Hooke v. Hooke, 6 La. 420. Maine; Smith's Laws of Me., Vol. 1, p. 239, Ch. 50, secs. 31, 38; Rev. Stat. Me. 1840-41, p. 449, Ch. 108, sec. 1; Rev. Stat. 1883; p. 550, secs. 8, 9; Earl v. Rowe, 35 Me. 421.

Massachusetts; Provincial Stat. Mass. 1752, Ancient Charter, 594; Stat. Mass. 1817, Ch. 190, Gen. Stat. Mass. 1860, p. 490, § 14, p. 703, $$ 48, 65.

The constitutional grant of jurisdiction over all matters testamentary and of administration is identical with a grant of probate jurisdiction. Smith Craig, 10 Smedes & M. 447. Partition is not analogous to and is not a legitimate extension of the process of distribution.

The executors and administrators are and ever have been officers of the court.

Toller's Law of Exrs. and Admrs. S2, 114, 241, 369, 401.

They exercise a power over the estate under the direction of the court.

Id. 33, 46, 75, 95, 100

The executor and administrator have a mere custody for the purpose of administration. Id. 133, 241, 255, 256.

In a Probate Court, the decree of distribution neither gives, creates, nor transfers any rights of property.

Distribution gives to the distributee no new title to the property, but only ascertains the property to which his title shall attach as heir at law of the deceased.

Thompson v. Thomas, 30 Miss. 152, 158; Ferrie v. Public Admr. 3 Bradf. 249; Hayward v. Hayward, 20 Pick. 517; Kingsbury v. Scovill, 26 Conn. 349; Foster v. Fifield, 20 Pick. 67; Mills v. Marshall, 8 Ind. 54; Adams v. Adams, 10 Met. 170.

Partition is a proceeding issuing in a judgment transferring property.

Freeman, Co-tenancy and Partition, secs. 86, 250, 290, 347, 251, 298, 299, 274, 275, 276. At common law, a voluntary partition could only be accomplished in the manner required for the conveyance of landed estate.

Wainwright v. Dorr, 13 Pick. 335; Arms v. Lyman, 5 Pick. 211; Sigourney v. Sibley, 21 Pick. 101; Bemis v. Stearns, 16 Mass. 200; Jenks Howland, 3 Gray, 536; Gordon v. Pearson, 1 Mass, 323.

Mississippi; Stat. Laws of Miss. (Howard and Hutchinson's), p. 412, § 89, p. 471, § 14; Smith v. Craig, 10 Smedes & M. 447; Currie v. Stewart, 26 Miss. 649; Lum v. Reed, 53 Miss. 77.

New Hampshire: Comp. Stat. N. H. p. 393, § 6; Kelly v. Kelly, 41 N. H. 501.

New Jersey: Laws of N. J. 1821, p. 780, $13; Dixon's Dig. Laws of N. J. 668, § 10; Den ex dem. Richman v. Baldwin, 21 N. J. L. (1 Zab.) 395; Curtis v. Jenkins, 20 N.J.L.(1 Spencer) 679.

Pennsylvania: 1 Brightly's Purd. Dig. Laws of Pa. 1700-1872, p. 433, § 138; Bishop's Appeal, 7 Watts & S. 251; Selfridge's Appeal, 9 Watts & S. 55; Re Gardiner's Estate, 4 Pa. 502. Tennessee: The County Court has jurisdiction of the probate of wills.

Code Tenn. 1858, § 2169; Stat. Tenn. 1831, 2169; Heywood & Cobb's Revision, p. 103, § 47.

The County, Circuit and Chancery Courts have concurrent jurisdiction.

Stats. Tenn. 1831, Revision, Haywood & Cobb's, 244; Tenn. Code, 1858, § 3266; Wilcox v. Cannon, 1 Cold. 369.

Vermont: Laws of Vt. 1824, pp. 349, 350, S$ 79, 83; Rev. Laws Vt. 1880, §§ 2252-2260; Grice v. Randall, 23 Vt. 243.

Wisconsin: Rev. Stat. Wis. 1849, pp. 380-382; 1858, 605-607; 1878, §§ 3942–3955. Minnesota: Stat. of Minn. 1851, p. 260, § 5; 1878, p. 597, § 6.

South Carolina: Stat. S. Car. Vol. II, p. 64, 26 (Stat. 1839-1849); Stat. S. Car. Vol. 6, p. 248 (Stat. 1814-1838); Rev. Stat. S. C. p. 573, § 41; Faust v. Bailey, 5 Rich. L. 110; Davenport v. Caldwell, 10 Š. C. 317; Gates v. Irick,

2 Rich. L. 593.

error:

The Probate Courts of California in 1875 had jurisdiction, as ancillary to the settlement of the estates of deceased persons, to partition the real property among the heirs or other distrib

utees.

Stat. of Cal. 377; Stat. of Cal. of 1851, 448, 481, 482, 483; art. VI, § 6, of the Const. of Cal. in force in 1875.

ceners.

The modes of proceeding in partition cases in the common-law courts, are fully detailed by the following authorities:

Allnatt on Partition, 65, 70; Booth on Real Actions, 244, 245; 2 Cruise, 285; Petersdorf's Ab. Tit. Partition; Littleton, SS 247, 248; Chitty's Pl. 1390-1407; Bac. Ab. Joint Tenants 1, and Freeman on Cotenancy and Partition, $422.

The jurisdiction of the courts of common law and chancery are concurrent.

Mitford, Eq. Pl. by Jeremy, 120; 1 Story's Eq. Juris. § 650, et seq.; Strickland v. Strickland, 6 Beav. 77; Agar v. Fairfax, 17 Ves. Jr. 551; Watson v. Duke of Northumberland, 11 Ves. Jr. 153.

The jurisdiction granted the District Court in equity cases did not prohibit the Legislature from investing the Probate Courts with jurisdiction to partition the estates of deceased persons among the heirs.

Zander v. Coe, 5 Cal. 230; Courtwright v. Bear River & A. W. & M. Co. 30 Cal. 577; Ro-senberg v. Frank, 58 Cal. 402, 403; Caulfield v. Stevens, 28 Cal. 118; Yolo County v. Sacramento, 36 Cal. 195; Stoppelkamp v. Mangeot, 42 Cal. -324, 325.

The jurisdiction of the Probate Court over the estates of deceased persons is plenary.

Auguisola v. Arnaz, 51 Cal. 438; Rosenberg v. Frank, 58 Cal. 402; Clarke v. Perry, 5 Cal. 60; Belloc v. Rogers, 9 Cal. 129; Deck v. Gerke, 12 Cal. 436; Walls v. Walker, 37 Cal. 426; Estate of Hinckley, 58 Cal. 457; De Castro v. Barry, 18 Cal. 96.

The jurisdiction of Probate Courts is widely exercised in the States of the Union.

Bryant v. Stearns, 16 Ala. 302; Coker v. Pitts, 37 Ala. 692; Gates v. Treat, 17 Conn. 389; Shull v. Kennon, 12 Ind. 34; Bennet v. East, 7 Ind. 175; Mason v. Mason, 12 La. 589; Badon v. Foucher, 15 La. 455; Hooke v. Hooke, 6 La. 420; Potter v. Webb, 2 Me. 257; Earl v. Rowe, 35 Me. 415; Cogswell v. Reed, 12 Me. 198; Dean v. Hooper, 31 Me. 107; Furlong v. Soule, 39 Me. 123; Pierce v. Irish, 31 Me. 254; Clark v. Pishon, Id. 503; Potter v. Hazard, 11 Allen, 187; Wainwright v. Dorr, 13 Pick. 333; Arms v. Lyman, 5 Pick. 211; Sigourney v. Sibley, 21 Pick. 101; Bemis v. Stearns, 16 Mass. 200; Jenks v. Howland, 8 Gray, 536; Gordon v. Pearson, 1 Mass. 323; Gaines v. Smiley, 7 Smedes & M. 53; Campbell v. Wallace, 12 Ñ. H. 362; Kelly v.

Tryon v. Farnsworth, 30 Wis. 577; Simpson v. Cook, 24 Minn. 180; Tompkins v. Tompkins, 1 Story, C. C. 547; Shaw v. Shaw, 4 Cranch, C. C. 715; Lewis v. Pratt, 2 Whart. 81; Hubbard v. Rickart, 3 Vt. 207; Vick v. Vicksburg, 1 How. (Miss.) 444.

The statutes of California investing Probate Courts with jurisdiction to partition estates among the heirs or other distributees, are not in violation of the Constitution of the State.

Meeks v. Olpherts, 100 U. S. 564 (25:735); Meeks v. Vassault, 3 Sawy. 206, and cases cited; Cunningham v. Ashley, 45 Cal. 485; Meeks v. Hahn, 20 Cal. 621; Meeks v. Kirby, 47 Cal. 168; Chapman v. Hollister, 42 Cal. 462; Burton v. Lies, 21 Cal. 91.

The power of the Legislature over the subject of descents and successions is absolute.

State v. Smith, 70 Cal. 155; Lyons v. Stale, 67 Cal. 380; Carrasco v. State, Id. 385; People v. Rogers, 13 Cal. 165.

Notice was published once a week for four successive weeks.

Sec. 1705, Code of Civil Pro.

The decree shows that proof of notice was made to the satisfaction of the court. The decree is conclusive evidence of this jurisdictional fact.

McClellan v. Downey, 63 Cal. 523; Re Sbarboro's Estate, 70 Cal. 147; Re Palomares' Estate, 63 Cal. 402; Dean v. Superior Ct. Id. 477; Wiggin v. Superior Ct. 68 Cal. 400.

The Code in its provisions relating to probate proceedings in section 1718 requires the court to appoint some competent attorney at law to represent in all such proceedings all devisees, heirs, etc., who are minors and have no general guardian.

Sec. 1307, C. C. P.

Had the appointment of a guardian ad litem been required, the failure to do so would have been a mere irregularity, to be reached on an appeal, but not rendering the proceeding void when attacked collaterally.

Freeman on Judgments, § 151; Simmons v. McKay, 5 Bush, 25; Montgomery v. Carlton, 56 Tex. 365; Beeler v. Bullitt, 3 A. K. Marsh. 280; Barber v. Taylor, 9 Dana, 87; Austin v. Charlestown Female Seminary, 8 Metc. 196; Bloom v. Burdick, 1 Hill (N. Y.) 131; Barber v. Graves, 18 Vt. 293.

The proceedings of the commissioner were in exact compliance with the law. Secs. 1683, 1684, C. C. P.

Partition in probate proceedings is only ancillary to the settlement of the estate, and is not intended to be made between any others than the heirs or devisees of the decedent.

Sec. 1675, C. C. P.; Freeman on Co-tenancy & Partition, & 553.

A decree or judgment in partition has no other effect than to sever the unity of possession, and does not vest in either of the co-tenants any new or additional title.

Wade v. Deray, 50 Cal. 380; Mound City L. & W. A880. v. Philip, 64 Cal. 495.

In decrees of partition in the Probate Court, no deed of release of their several proportions by one heir or devisee to another is required. 1 Washburn on Real Property, 586; Freeman on Co-tenancy & Partition, § 427; Freeman v. Rahm, 58 Cal. 114; Wright v. Marsh, 2 G. Greene (Iowa) 110; 1 Story's Eq. Jur. § 652; Re Garraud's Estate, 36 Cal. 277.

Mr. Justice Harlan delivered the opinion of the court:

This case involves 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 intestatę 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 made partition between the heirs according to their respective interests of the various parcels of real estate remaining in the hands of the 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 principal assignment of error is, that, under the Constitution of California prior to 1880 the Probate Court could not take jurisdiction of a proceeding to partition real estate. It is contended that its control over the estate ceased when it approved the final settlement, and, by a decree of distribution, defined the nature and extent of the interests of the heirs in the remaining estate of the decedent. A par tition severing the unity of possession among the heirs, and investing each with a right, as against the others, to the exclusive possession and ownership of distinct parts of the estate, could not, it is insisted, have been constitutionally effected by proceedings in a Probate Court. These questions have received the most careful consideration, as well because of their intrinsic importance, as because their determination by this court, as we are informed by counsel, may seriously affect the title to large bodies of land in California.

Tracing the course of legislation in California in reference to the jurisdiction and powers of the Probate Courts of that State, we find that the first statute upon the subject is that of April 22, 1850, entitled "An Act to Regulate the Settlement of the Estate of Deceased Persons.' Stat. Cal. 1850-53, c. 129, p. 377. Another statute was passed May 1, 1851, having a similar title, and covering the same subject. Compiled Laws Cal. 1850, c. 120, pp. 377 to 423.

Does the State Constitution prohibit the partition of real estate by proceedings in a Probate Court? The contention of the plaintiffs is that exclusive original jurisdiction of such proceedings is given to district courts, and that partition is foreign to the probate system as recognized in that instrument.

By the Constitution of California, in force at the time partition was made of the estate in

Following are copies of sections referred to [Ed.] Sec. 1581. The executor or administrator must take into his possession all the estate of the decedent, real and personal, and collect all debts due to the decedent or to the estate. For the purpose of bringing suits to quiet title, or for partition of such estate, the possession of the executors or administrators is the possession of the heirs or devisees; such possession by the heirs or devisees is subject, however, to the possession of the executor or administrator, for the purposes of administration, as provided in this title.

Sec. 1634. If the account mentioned in the preceding section be for a final settlement, and a petition for the final distribution of the estate be filed with said account, the notice of the settlement must state those facts, which notice must be given by posting or publication, as the court may direct, and for such time as may be ordered. On the settlement of said account, distribution and partition of the estate to all entitled thereto may be immediately had, without further notice or proceedings. [Amendment, approved March 11, 1876; Amendments 1875-6, 104; took effect ninety days after passage.]

Sec. 1665. 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; and if the decedent has left a surviving child, and the issue of other children, and any of them, before the close of administration, have died while under age and not having been married, no administration on such deceased child's estate is necessary, but all the estate which such deceased child was entitled to by inheritance must, without administration, be distributed to the other heirs at law. A statement of any receipts and disbursements of the executor or administrator, since the rendition of his final accounts, must be reported and filed at the time of making such distribution, and a settlement thereof, together with an estimate of the expenses of closing the estate, must be made by the court and included in the order or decree; or the court or judge may order notice of the settlement of such supplementary account, and refer the same as in other cases of the settlement of accounts.

Sec. 1666. In the order or decree, the court must name the persons and the proportions or parts to

may establish in any incorporated city or town;" and the supreme court, the district, county, probate, and such other courts as the Legislature should prescribe, were declared to be courts of record. Const. of 1849, amended in 1862, art. VI, §§ 1, 9. The supreme court is invested with appellate jurisdiction in all cases in equity; in all cases at law involving the title or possession of real estate, or the legality of any tax, impost, assessment, toll or municipal fine, or in which the demand, exclusive of inversy, amounts to three hundred dollars; in all cases arising in the probate courts; and in all criminal cases amounting to felony, or questions of law. It also has power to issue writs of mandamus. certiorari, prohibition, and habeas corpus, and also all writs necessary or proper to the complete exercise of its appellate jurisdiction." Id. § 4.

The Constitution of 1849 provided that the District Courts shall have original jurisdiction in law and equity in all civil cases where the amount in dispute exceeded two hundred dollars, exclusive of interest. In all criminal cases not otherwise provided for, and in all issues of fact joined in the Probate Courts, 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.

Sec. 1668. The order or decree may be made on the 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 las 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. [Amendment approved March 24th, 1874; Amendments 1873-1874, 373; took effect July 1, 1874.1

Sec. 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 by 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 indorsed 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.

Sec. 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, of 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.

Sec. 1677. If the real estate is in different counties, the probate court may, if deemed proper, appoint a commissioner for all, or different com