ESTATE OF PACKER.

[125 CALIFORNIA, 396.]

EXECUTORS AND ADMINISTRATORS - LEGISLATIVE POWER TO AUTHORIZE SALE OF REAL ESTATE FOR BENEFIT OF HEIRS.-Upon the death of an ancestor, his heirs immediately have a vested right in his real property, subject only to liens or burdens then existing or created by law in force at the time; and, after the title has thus vested in the heirs, the legislature has no power to devest it by authorizing the administrator to sell the inheritance for the benefit of the heirs.

James Burdett, for the appellant.

Charles L. Batcheller, for the respondent.

390 CHIPMAN, C. Pending administration of the aboveentitled estate the administrator filed his petition praying for an order to sell certain real property belonging to the estate, "on the ground that it was for the advantage, benefit, and best interests of the estate and those interested therein," setting forth in detail "in what way an advantage and benefit would accrue to the estate, and those interested therein, by such sale." An order was duly made reciting the substance of the petition and fixing a time and place for its hearing. This order was duly published as required by law. Upon the hearing, proofs in support of the petition were submitted, and no one interested in 897 the estate opposed the application. The sale was ordered and made in due course, and was duly confirmed after hearing of returns of account of sale and upon due notice. The surviving wife of deceased, one of the heirs at law, appeals.

The petition showed that there were no debts, expenses, or charges of administration to be met and that the only ground for the order was as above stated. Section 1537 of the Code of Civil Procedure, as amended in 1893, reads: "And if said order for sale of real estate is petitioned for on the ground that it is for the advantage, benefit, and best interests of the estate and those interested therein that a sale be made, the petition must set forth in what way an advantage or benefit would accrue to the estate, and those interested, by such sale," etc. Section 1538 of the Code of Civil Procedure provides as follows: "If it appears to the court or judge, from such petition, that it is necessary, or that it would be for the advantage, benefit, and best interests of the estate and those interested therein, to sell the whole or some portion of the real estate for the purposes and reasons mentioned in the preceding section, or any of them,

such petition must be filed, and an order thereupon made" directing all persons interested to appear and show cause, etc., at a time and place specified. Section 1542 of the Code of Civil Procedure authorizes the court to order the sale if the allegations of the petition are sustained by the proofs. Sections 1543 and 1544 relate to the same matters.

Appellant relies upon the case of Brenham v. Story, 39 Cal. 179; citing, also, Pryor v. Downey, 50 Cal. 409, 19 Am. Rep. 656; McNeil v. Congregational Soc., 66 Cal. 110; Smith v. Olmstead, 88 Cal. 582, 22 Am. St. Rep. 336; Bates v. Howard, 105 Cal. 173; and some other cases; also, 2 Woerner's American Law of Administration, secs. 469, 470.

In Brenham v. Story, 39 Cal. 179, an act of the legislature approved April 15, 1861 (Stats. 1861, p. 152), authorized the administrator of Charles White, deceased, "to sell at public or private sale, at his discretion, and without having first obtained an order of the probate court therefor, the whole or any portion of the real estate, or any right, title, or interest therein, claimed, held, or owned by the said Charles White, at the time of his death, as in the judgment of such administrator will best promote 398 the interests of those entitled to said estate." This act was amendatory of section 1 of an act approved April 6, 1860: Stats. 1860, p. 148. Other sections of the act of 1860 required the administrator to report the sale to the court for approval and empowered the court to act ex parte on the report, and made no provision for notice of any hearing on the report. Upon such approval of the court the administrator was authorized to make a deed. This was a special act passed after the death of the intestate. The general law then was much the same as now, and authorized the sale of real estate for the purpose of making payment of family allowance, debts of the decedent, or the debts, expenses, or charges of administration or legacies, but the general law did not then provide for a sale of real estate, there being no such charges, whenever, in the judgment of the administrator, the sale would best promote the interest of those entitled to the estate. This latter, however, was what the legislature undertook to do by special act, after the death of the ancestor. The court said: "Upon the death of the ancestor the heir becomes vested at once with the full property, subject to the liens we have mentioned (the debts, etc.); and, subject to these liens and the temporary right of possession of the administrator, he may at once sell and dispose of the property, and has the same right to judge for himself

of the relative advantages of selling or holding that any other owner has. His estate is indefeasible, except in satisfaction of these prior liens, and the legislature has no more right to order a sale of his vested interest in his inheritance, because it will. be, in the estimation of the administrator and the probate judge, for his advantage, than it has to direct the sale of the property of any other person acquired in any other way." Respondent misconceives the controlling principle of the case in placing it on the fact "that in passing the act the legislature usurped judicial functions." The decision rests upon the want of power to order the sale after the title had vested in the heirs except for the purposes provided by the law in force at the death of the ancestor. In the case before us, decedent died July 10, 1891, while a resident of this state, and letters were duly issued to respondent as administrator in May, 1892. The act under which the sale was ordered and made was approved 899 March 23, 1893: Stats. 1893, p. 212. Whether the law is constitutional, as applied to the property of decedents who have died since the passage of the act, is a question not presented, and need not be considered or decided. But we think the precise question here involved was decided in Brenham v. Story, 39 Cal. 179, adversely to respondent's contention, and must rule this case. The principle there laid down, that upon the death of the ancestor the heir at once becomes vested with the full property, subject only to liens then existing, or created by statute then in force, has never been questioned by the court: See Smith v. Olmstead, 88 Cal. 582, 22 Am. St. Rep. 336; Bates v. Howard, 105 Cal. 173, and many other cases that might be cited. It is true, as we are reminded by respondent, that in the Brenham case the court said: "The right of an heir to his inheritance depends upon positive law, and it is not a natural or an absolute right. It is competent for the legislature to change the rule of inheritance, or to restrict the testamentary power. It may provide, as it has done, that the heir or devisee shall take subject to certain burdens, as the payment of the debts," etc. But this is far from saying that the legislature may, as was attempted in that case, after the title had vested in the heir, empower the administrator to sell the inheritance for purposes not authorized at the time the title vested and to which it was not subject when it vested. Respondent cites Cooley's Constitutional Limitations and some cases in support of the power. These may be worthy of consideration when a case arises under the statute where the decedent has died since the enactment of

the amendments, but they do not convince us of any unsoundness in the principles stated in Brenham v. Story, 39 Cal. 179. The statute authorizing the mortgaging of estates, to which our attention is called, rests upon the principle that the mortgage provides for the payment of liens existing under the law or likely to arise thereunder.

Respondent presents reasons in support of the statute as applicable to estates where the decedent died after the passage of the law, but, as we have said, that question does not necessarily arise here and ought not to be decided until it does arise; any expression of opinion upon it now would be obiter.

We advise that the order be reversed.

Haynes C., and Gray, C., concurred.

For the reasons given in the foregoing opinion the order is reversed Garoutte, J., Van Dyke, J., Harrison, J.

EXECUTORS UNDER STATUTORY AUTHORITY-VALIDITY OF.-Upon the death of an ancestor, the title to his real property passes at once to his heirs or devisees, subject to the ancestor's debts and the expenses of administration, but with the right of present possession in the administrator: Beckett v. Selover, 7 Cal. 215, 68 Am. Dec. 237; notes to Shannon v. Dillon, 48 Am. Dec. 396; Dorrance v. Raynsford, 67 Conn. 1, 52 Am. St. Rep. 266; Powers v. Morrison, 88 Tex. 133, 53 Am. St. Rep. 738. Generally speaking, statutes which authorize an administrator to sell the realty of a decedent, where there is a necessity for such sale, as for the payment of debts, are valid: Kibby v. Chitwood, 4 T. B. Mon. 91, 16 Am. Dec. 143; Williamson v. Williamson, 3 Smedes & M. 715, 41 Am. Dec. 636; but statutory authority by which one may be deprived of his estate must be strictly pursued: Note to Doe v. Henderson, 48 Am. Dec. 221. A special act authorizing the sale of certain realty of the decedent, so as to hasten its improvement and increase the value of the residue, and providing that the proceeds shall be assets in the administrator's hands, to be disposed of according to law, is valid: Chandler v. Douglass, 8 Blackf. 10, 44 Am. Dec. 732. The heirs, however, cannot be disseised of their freehold, except in accordance with law: Lane v. Dorman, 3 Scam, 238, 36 Am. Dec. 543; and real estate can be taken from them, after their ancestor's death, only to satisfy some claim existing against him in his lifetime, or some condition arising in the settlement of his estate which makes a sale of the land necessary or advantageous, and then only in the manner pointed out by law: Dorrance v. Raynsford, 67 Conn. 1, 52 Am. St. Rep. 266. A special statute authorizing an administrator to sell real property, there being no necessity for such sale, and its only effect being to convert the property into money for the purposes of distribution, is unconstitutional and void. Such a statute deprives the heirs of their property without due process of law: Johnson v. Brauch, 9 8. Dak. 116, 62 Am. St. Rep. 857.

AND ADMINISTRATORS-SALES

ESTATE OF DONNELLY.

[125 CALIFORNIA, 417.]

CIVIL DEATH IMPORTS A DEPRIVATION of all rights whose exercise, or enjoyment, depends upon some provision of positive law.

THE RIGHT OF INHERITANCE is a civil right existing only by virtue of the law, and the legislature may make the deprivation of this right a portion of the penalty to be imposed for the commission of a crime. DESCENT INHERITANCE - LIFE CONVICT — RIGHT OF.-A sentence of a person to imprisonment in the state prison for life, under a statute which provides that, after such sentence, the convict shall be "deemed civilly dead," extinguishes his civil rights, including the right of inheritance. He cannot, therefore, be a distributee of an estate to which he would otherwise be an heir.

STATUTES-LIMITING PROVISIONS-EFFECT OF, UPON MAIN ACT.-If a statute declares that "a person sentenced to imprisonment in the state prison for life is thereafter deemed civilly dead," limitations upon such statute, that the convict shall not thereby be rendered incompetent as a witness, and that his person shall still be under the protection of the law, authorize the conclusion that those are the only cases in which it is not to be applied. The convict's civil death, therefore, destroys every civil right not enumerated in such limitations.

Crittenden Thornton and Thornton & Merzbach, for the appellant.

Timothy J. Lyons, for the respondent E. J. Le Breton. Edward C. Harrison, for the respondent C. H. Athearn. Alexander D. Keyes, Dunne & McPike, T. J. Crowley, and Humphreys & Morrow, for the other respondents.

418 HARRISON, J. Thomas Donnelly died intestate February 17, 1896, and on December 3, 1897, the superior court made a decree distributing his estate to his widow and the successors in interest of three of his children. The decedent left surviving him another child, James J. Donnelly, who, prior to his father's death, viz., October 5, 1894, was sentenced to imprisonment in the state prison of the state of California for the term of his natural life, and who, at the time of his father's death and at the date of the said decree of distribution, was in confinement therein under such sentence. February 11, 1897, James made an assignment and transfer of his interest in the estate of his father to Charles J. Stilwell, who, by virtue thereof, claimed to have a portion of the estate of the decedent distributed to him. The court denied his claim and distributed