Whenever a debtor of a decedent is unable to pay all of his debts, the executor or administrator, may with the approval of the court or a judge thereof, compound with him and give him a discharge upon receiving a fair and just dividend of his effects, and a compromise may also be authorized when it appears to be just, and for the best interests of the estate.47

When there is a deficiency of assets of the estate of a decedent in the hands of an executor or administrator, and such decedent in his life time has made conveyances of his property, and such conveyances were in fraud of his creditors, the executor or administrator, must on the application of the creditors of the decedent, and on their payment, or securing the payment of the costs and expenses of the action, commence and prosecute to final judgment any proper action for the recovery of such property.

48

A foreign administrator of the estate of a decedent who as such administrator sues and recovers judgment against a person in the state or county in which his letters of administration were issued, cannot, as such administrator, maintain in another state, an action on such judgment against the judgment debtor, but can maintain such action in another state in his individual name.49

47. Code of Civil Procedure, Sec. 1588.

48. Code of Civil Procedure, Sec. 1589 and 1590.

49. Lewis v. Adams, 70 Cal. 403.

CHAPTER LI.

OF PLEADINGS AND JUDGMENTS IN ACTIONS BY OR AGAINST AN EXECUTOR OR AN ADMINISTRATOR.

The complaint in an action by an executor or administrator must contain allegations showing that he is entitled to sue in that capacity.1

In an action by an executor the complaint should show the death of his testate, leaving a last will, and his being named therein as executor, the probate of such will, and the issuance of letters testamentary thereon to the plaintiff, and his qualification and entry upon the discharge of his duties as such executor, and that he has been ever since the executor of such will.2

An administrator must allege matters to show his right to sue as such administrator; although it is necessary that an executor or administrator who sues in a representative capacity should allege matters showing his appointment and right to sue, in actions against executors or administrators it is not necessary to allege in the complaint facts showing how the defendant became invested with his representative capacity, but it is sufficient if the complaint show the death of the decedent, and that the defendant is an executor or administrator of the decedent's estate.3

A judgment against an executor or administrator should not, as a general rule, be a personal judgment, but the judgment should be made payable in the due course of administration.4

Costs may be taxed against an executor or administrator

1. Barfield v. Price, 40 Cal. 536; Judah v. Fredericks, 57 Cal. 389; Halleck v. Mixer, 16 Cal. 574.

2. Halleck v. Mixer, 16 Cal. 575; Kirsch v. Derby, 96 Cal. 602.

3. Wise v. Williams, 72 Cal. 547.

4. Atherton v. Fowler, 46 Cal. 323.

on a judgment against such executor or administrator when the prevailing party in such action is entitled to costs in the action, and the judgment in the action for costs may be against such executor or administrator, personally; but he may be allowed for such costs in his account in the probate court unless that court otherwise directs.5

5. Reay v. Butler, 99 Cal. 477.

CHAPTER LII.

OF PROVISIONS FOR THE SUPPORT OF THE FAMILY OF A DECEDENT, AND OF THE HOMESTEAD.

Until an inventory of the estate of a decedent be returned, the family of the decedent, if consisting of his widow and his minor children, or of either or any of them, is entitled to remain in possession of the homestead, of the wearing apparel of the family, the household furniture of the decedent, and is entitled to a reasonable provision for the support of such family, to be allowed by the court or a judge thereof.1

Upon the return of such inventory, or at any subsequent time during the administration, the court may, on its own motion, or on a petition, set apart for the use of the surviving husband or wife, and in case of his or her death, for the use of the minor children of the decedent, all the personal property of the decedent exempt from execution, and if the decedent left a widow or surviving husband and left no minor child or children, the property set apart will be the property of the widow or surviving husband; but if the decedent left also a minor child or children, one-half of this property shall be the property of the widow or surviving husband, and the other half thereof shall be

property of the minor child, or in equal shares, the property of the minor children if there be more than one; if there be no surviving husband or wife, the whole of this property will belong to the minor child or children; if, upon the return of the inventory it shall appear there from that the value of the whole estate does not exceed the sum of fifteen hundred dollars, and there be a widow or minor children of the deceased, the court or a judge thereof, must make an order requiring all persons interested to appear on a day fixed to show cause why the

1. Code of Civil Procedure, Sec. 1464.

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whole of said estate should not be assigned for the use and support of the family of the deceased.

Notice thereof shall be given and proceedings had in the same manner as is provided in sections 1633, 1635 and 1638 of the Code of Civil Procedure.

If, upon the hearing, after it has been proved to the satisfaction of the court that such notice was given and the court finds that the value of the estate does not exceed the sum of fifteen hundred dollars, the court, by decree, which should show that proof had been made to the satisfaction of the court that such notice had been given, should assign to the widow of the deceased, if there be a widow, if no widow, then to the minor child or children of the deceased, if there be a minor child or children, the whole of the estate of the deceased, subject to whatever mortgages, liens or incumbrances there were upon the estate at the time of the death of the deceased, and after the payment of the expenses of the last illness of the deceased, funeral charges and expenses of administration.2

If the widow has a maintenance derived from her own property equal to the portion set apart to her under the sections providing for the support of the family, the whole property so set apart, other than the homestead, must go to the minor children.

Upon the return of an inventory of an estate of a decedent, or at any time thereafter, the court must set apart as a homestead, as hereinafter stated, to the surviving husband or wife, the homestead of the decedent which has been selected, designated and recorded, provided it was selected and recorded from the common property, or from the separate property of the person selecting or joining in the selection of the same.

If no such homestead has been selected, designated and recorded, or in case such homestead was selected, designated and recorded by the survivor, out of the separate property of the deceased, who did not join in such selection, the court must select, designate and set apart, and cause to be recorded a homestead, out of the common property, or, if there be no common property, then out of the real estate belonging to the deceased,

2. Estate of Palomares, 63 Cal. 402; Code of Civil Procedure, Secs. 1465, 1468, 1469.