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3957. Partition may accompany distribution. Petition. Notice. Decree. The administrator or executor may include in the petition for distribution, or any person interested may at any time before distribution separately file, a petition for the partition of the estate among the persons entitled thereto in proportion to their respective rights. Notice of such petitions shall be given, and the court, after a hearing, may in one decree distribute and partition the whole property of the estate, setting out by metes and bounds, or description, the share of each individual so that the same can be easily distinguished, or the court may, upon request of two or more parties, set off their shares so as to be held by them in common and undivided. [C. L. §§ 4266*, 4267*, 4270*. Cal. C. Civ. P. ?? 1675, 1676*, 1679*.

Partition, civil procedure, ? 3522-3571.

3958. Partition by commissioners. Whenever it is impracticable or inconvenient for the court to make a complete partition among all the parties in the first instance, or, on petition of any interested person, the court, having first ascertained and determined the shares or interests of the persons entitled, may appoint one or more disinterested persons to act as commissioners for the purpose of making the partition. In making the partition, the commissioners must divide the property, and allot the several portions thereof to the several parties, quality and quantity relatively considered, according to the respective rights of the parties as determined by the court, designating the several portions by proper landmarks, and may take testimony and order surveys and take such other steps as may be necessary. [C. L. §§ 4266*, 4267*, 4274*.

Cal. C. Civ. P. 23 1675, 1676*, 1683*.

3959. Report. Confirmation.

Decree. As soon as practicable, the commissioners must make a report to the court in writing, and the court may confirm, change, modify, or set aside the report, and, if necessary, appoint new commissioners. Upon the confirmation of the report, the court may include distribution and partition in one decree. [C. L. § 4275*.

Cal. C. Civ. P. ? 1684*.

3960. Estate in different counties. If the real estate is in different counties, the court may, if deemed proper, appoint commissioners who shall make division of such real estate wherever situated within this state. Cal. C. Civ. P. ? 1677*.

[C. L. § 4268.

3961. Distribution to grantees of heirs. 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. [C. L. § 4269.

Cal. C. Civ. P. 1678.

more.

3962. Where partition impracticable. Assignment to one or When the real estate cannot be divided without prejudice or inconvenience to the owners, the 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. [C. L. $ 4271.

Cal. C. Civ. P. ? 1680*.

3963. Id. When any tract of land or tenement is of greater value than any one's share in the same 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. [C. L. § 4272.

Cal. C. Civ. P. 2 1681.

3964. Estate sold when division impracticable. 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 as provided in chapter ten of this title. [C. L. § 4273.

Cal. C. Civ. P. 1682.

Filing of decree, notice, ? 4040.

3965. Executor's discharge on final settlement. When the estate has been fully administered, and it is shown by the executor or administrator, by the production of satisfactory vouchers, that he has paid all sums of money due from him, and delivered up, under the order of the court, all the property of the estate to the parties entitled, and performed all the acts lawfully required of him, the court must make a judgment or decree discharging him from all liability to be incurred thereafter. [C. L. § 4284.

Cal. C. Civ. P 1697.

3966. Distribution of property afterward discovered. Reissue of letters. The final settlement of an estate shall not prevent a subsequent distribution and partition of property afterwards discovered, upon petition and notice, without a reissue of letters. Letters may be reissued at any time if necessary. [C. L. § 4285*.

Cal. C. Civ. P. ? 1698*.

3967. Partition allowed within two years after distribution. Notice. Costs. Nothing in this chapter contained shall be construed to prevent the partition of any estate after distribution, by further proceedings in the estate, provided a petition for such partition be presented to the court in which the estate was administered, by one of the parties, within two years after distribution. Notice must be given and served as in original applications for distribution, and costs shall be apportioned as the court may deem just.

ABSENT HEIRS AND ESCHEATS.

3968. Non-resident decedent. Absent heirs. Delivery or sale of property. Upon application for distribution, after final settlement of the accounts of administration, if the decedent was a non-resident of this state leaving a will which has been duly proved or allowed in the state of his residence, an authenticated copy whereof has been admitted to probate in this state, and it is necessary, in order that the estate or any part thereof, may be distributed according to the will, that the estate in this state should be delivered to the executor or administrator in the state or place of his residence, the court may order such delivery to be made, and, if necessary, order a sale of the real estate, and a like delivery of the proceeds. The delivery, in accordance with the order of the court, is a full discharge of the executor or administrator with the will annexed in this state,

in relation to all property embraced in such order, which, unless reversed on appeal, binds and concludes all parties in interest. Sales of real estate, ordered by virtue of this section, must be made in the same manner as other sales of real estate of decedents by order of the court. [C. L. § 4263.

Cal. C. Civ. P. 1667.

Proof of foreign will, ?? 3806-3808. Aliens take by succession as well as citizens, 2847.

3969. Id. Local creditors must be paid first. The property of a non-resident decedent shall not be transmitted to a foreign executor or administrator, until all the creditors who are citizens of this state have been paid, if the estate is solvent, or, until such creditors have received their just proportions, if the estate is insolvent.

N. Dak. (1895) ?? 6526, 6527*.

3970. Appointment of agent for absent heir. When any estate is assigned or distributed by a judgment or decree of the court to any person residing out of and having no agent in this state, and it is necessary that some person should be authorized to take possession and charge of the same for the benefit of such absent person, the court may appoint an agent for that purpose, and authorize him to take charge of such estate, as well as to act for such absent person in the distribution; provided, that if such estate is in money when so assigned or distributed, the executor or administrator of such estate may deposit the share of such person, in his name as far as known, with the state treasurer, who shall give duplicate receipts for the same, one of which must be filed with the state auditor and the other with the county clerk. [C. L. § 4278*.

Cal. C. Civ. P. 2 1691*. See Cal. Sup. '95, ? 1691*, p. 41.

3971. Id. Bond. Compensation and expenses. Action. The agent must execute a bond to the state of Utah, to be approved by the court, conditioned that he shall faithfully manage and account for the estate. The court appointing such agent may allow a reasonable sum out of the proceeds of the estate for his services and expenses. Such agent may sue and be sued as such.

[C. L. § 4279*.

Cal. C. Civ. P. ? 1692*.

Clerk may fix and approve bond, ? 3781. Qualifications of sureties, ?? 3493, 3831.

3972. Id. Annual report. The agent must render annually to the court appointing him a detailed account showing the condition of the estate. [C. L. § 4281*.

Cal. C. Civ. P. 2 1694*.

Final settlement by agent, 3979.

3973. Id. Sale of property. Procedure. Proceeds paid into state treasury. The court may at any time direct the sale of all or part of the real or personal property, and such sale shall be conducted and report made to the court in the same manner as is herein before provided for the sale of property of decedents. The proceeds of such sale, after deducting the expenses thereof, must be paid into the state treasury, and receipts taken and filed therefor as hereinbefore provided. [C. I. § 4280*.

Cal. C. Civ. P. ? 1693*.

3974. Id. Payment to claimant. Escheat in five years. When any person appears and claims the money paid into the treasury, the court making the distribution must inquire into such claim, and being first satisfied of his right thereto must grant him a certificate to that effect, under its seal; and upon the presentation of the certificate to him, the county clerk must draw his warrant on the state treasurer for the amount. If no claimant appears within five years after the decedent's death to claim succession, the property or the proceeds thereof shall escheat to the state for the benefit of the state school fund. [C. L. SS 2758*, 4283.

Cal. C. Civ. P. 1696*; Cal. Civ. C. ? 1406*.

Escheats to go to school fund, Con. art. 10, sec. 3.

3975. Estates of intestates without heirs. Special administration. When any person has died, or shall hereafter die intestate and without heirs, leaving property in this state, it shall be the duty of the court, upon notice of that fact, to appoint a special administrator to take charge of such property. The special administrator shall give a bond conditioned for the faithful performance of his trust, and shall annually render to the court appointing him a detailed account of the condition of the estate. The special administrator may sue, and be sued, and he shall be allowed by the court, out of the proceeds of the estate, a reasonable sum for his services and expenses. [C. L. §§ 2457*-2460*; '92, pp. 62-3*.

Mont. Civ. P. 2 2900*; Cal. Sup. '89, p. 436*.

Special administrators in general, 23821-3825.

3976. Id. Escheat if no claimant appears in two years. At the expiration of two years after such appointment, if no claimant shall have appeared and established his right to the estate, the same shall be deemed to have escheated to the state and the court shall direct the sale of all of the property and shall cause the proceeds thereof, after the payment of debts and expenses, and taxes, to be paid into the state treasury for the benefit of the state school fund. The special administrator shall deposit a receipt for such payment with the state auditor, and a duplicate thereof with the county clerk. [C. L. S$ 2457-2460*; '92, pp. 62-3*.

TRUSTEES AFTER DISTRIBUTION.

3977. Shall render annual accounts. Any trustee created by will or appointed to execute any trust so created shall annually, pending the execution of his trust, and at the termination thereof, render his accounts as such trustee to the court in which the will was probated. Such accounts shall be heard by the court upon notice. Any such trustee may, in the discretion of the court, upon application of any beneficiary, be ordered to appear and render his account. Cal. Sup. '89, p. 436*; Mont. Civ. P. ? 2900*. Notice, time, form, etc., 22 4026-4037.

3978. Expenses. Expenses. Compensation. Vacancies. The court shall allow any such trustee his proper expenses, and such compensation as may be reasonable. Unless the will provide for the resignation of a trustee and the manner of filling the vacancy caused by such resignation, the court may determine upon what terms the resignation of a trustee may be effected, and may appoint a successor.

Mont. Civ. P. 2901*.

3979. Final settlements by agents, special administrators, and trustees. Sections thirty-nine hundred and sixty-five and thirty-nine hundred and sixty-six, relating to final settlements, shall apply to agents, special administrators, and trustees and to the estates administered by them.

CHAPTER 13.

DETERMINATION OF HEIRSHIP.

3980. Petition. Notice. When a person dies intestate leaving real property within this state, and letters of administration have not been applied for, any heir or other person deriving title from or through an heir or heirs of such decedent, may, at any time after the expiration of one year from the decedent's death, present to any court that would have jurisdiction to appoint an administrator a verified petition setting forth the name and residence of the decedent, the date of his death, the fact that he died intestate, the names and addresses of the heirs, and a particular description of the real property of the

decedent, and praying for a decree determining the right of succession to the same. Upon the presentation of such petition, notice by publication shall be given and notice mailed to all the heirs of the decedent.

N. Dak. (1895) ? 6341*.

Notice, time, form, etc., 22 4026-4037. 3981. Id. Decree. Nature. Conclusiveness. When the facts are established to the satisfaction of the court a decree shall be given specifying who are the heirs of the decedent and what are the interests or shares of the parties, respectively, in the property and declaring the right of succession accordingly. Such decree is conclusive upon the parties and their successors in interest, subject, however, to such disposition of the property as may be made in any subsequent proceeding in the same court in pursuance of the probate of a will or grant of administration. This section shall not affect a right or interest of any person except an heir unless he becomes a party to the special proceeding. N. Dak. (1895) 6343*.

3982. Id. Creditors may present claim. Liability of heirs. Any creditor, if he chooses, may present his claim against the decedent at any such hearing, which, if allowed by the court, must be paid by the heirs before the decree is made, or, at the option of the court, may be declared to be a lien upon the real property of the decedent covered by such decree. Any heir and his executors and administrators shall be liable to any creditor for such part of any claim that may be duly allowed in such proceeding, or in a subsequent probate proceeding, as the value of the property received by such heir bears to the whole amount of real property so distributed.

CHAPTER 14.

GUARDIANSHIP.

IN GENERAL.

3983. Guardians, general and special. A general guardian is the guardian of the person, or of all the property of the ward within this state, or of both; every other is a special guardian. [C. L. §§ 2539, 2540.

Cal. Civ. C. 22 239, 240.

Power of general guardian, 24003.

3984. Guardian may be appointed by will or by deed. A guardian of the person or estate, or of both, of a child born, or likely to be born, may be appointed by will or by deed, to take effect upon the death of the parent appointing; such appointment may be made by the father, with the written consent of the mother; or by either parent, if the other be dead or incapable of consent. [C. L. § 2541.

Cal. Civ. C. 241*.

3985. Guardian of property must be appointed by court. No person, whether a parent or otherwise, shall have any power as a guardian of property, except by appointment as hereinafter provided. [C. L. § 2543. Power of guardians, 22 4003-4010.

Cal. Civ. C. 242.

3986. Guardian controlled by court making appointment. In all cases, the court first making the appointment of a guardian shall have exclusive jurisdiction to control him. [C. L. § 2545.

Cal. Civ. C. 245.

As to guardian for non-resident ward, ? 4022.

3987. More than one may be appointed. Survivor. The court, whenever necessary, may appoint more than one guardian of any person subject to guardianship, who must give bond and be governed and liable in all respects as a sole guardian. On the death of one of two or more joint guardians, the

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