require any person suspected of having taken wrongful possession of any of the effects of the deceased, or of having had such effects under his control, to appear and submit to an examination under oath touching such matters; and if on such examination it appears that he has the wrongful possession of any such property, the court may order the delivery of the same to the executor or administrator of the estate. [C. L. § 4110*.

Cal. C. Civ. P 1459*.

Citation generally, ? 4034.

3928. Id. Contempt. Imprisonment. If, on being duly served with the order of the court requiring him to do so, any person fails to appear in accordance with such order; or if, having appeared, he refuses to answer any question which the court deems proper to put to him in the course of such examination; or if he fail to comply with the order of the court requiring him to deliver the property, he may be committed to the jail of the county until a compliance is yielded. [C. L. § 4111*.

Cal. C. Civ. P. ? 1460*.

3929. Executor charged with estate. Every executor and administrator is chargeable in his account with the whole of the estate of the decedent which may come into his possession at the value of the appraisement contained in the inventory, except as provided in the following sections, and with all the interests, profits, and income of the estate. [C. L. § 4220.

Cal. C. Civ. P. 2 1613.

Naming a person executor does not discharge a claim which the testator held against him, 3845.

3930. Not to profit or lose by estate. He shall not make profit by the increase, nor suffer loss by the decrease or destruction, without his fault, of any part of the estate. He must account for the excess when he sells any part of the estate for more than the appraisement, and if any is sold for less than the appraisement, he is not responsible for the loss if the sale has been justly made. [C. L. § 4221.

Cal. C. Civ. P. 2 1614.

3931. Not to purchase claim.

No administrator or executor shall purchase any claim against the estate he represents; and if he pays any claim for less than its nominal value, he is only entitled to charge in his account the amount he actually paid. [C. L. § 4224.

Cal. C. Civ. P. ? 1617.

3932. Not accountable for uncollectible debts. No executor or administrator is accountable for any debts due the decedent, if it appears that they remain uncollected without his fault. [C. L. § 4222.

Cal. C. Civ. P. 1615.

3933. Necessary expenses allowed. Compensation. He shall be allowed all necessary expenses in the care, management, and settlement of the estate, including reasonable fees paid to attorneys for conducting the necessary proceedings or suits in courts, and for his services the fees provided in this chapter; but when the decedent, by his will, makes some other provision for the compensation of his executor, that shall be a full compensation for his services, unless, by a written instrument, filed in the court, he renounces all claim for compensation provided for by the will. [C. L. § 4223.

Cal. C. Civ. P. 22 1616.

Estate is not responsible for debt contracted by administrator to build house on property thereof.

Rolfson v. Cannon, 3 U. 232; 2 P. 205. And see Cain
Heirs v. Young, 1 U. 361.

3934. Commissions, schedule of. When no compensation is provided by the will, or the executor renounces all claim thereto, he must be allowed commissions upon the amount of estate accounted for by him, as follows: For the first thousand dollars, at the rate of five per cent; for all above that sum, and not exceeding five thousand dollars, at the rate of two and one-half per cent; for all above five thousand dollars, and not exceeding ten thousand dollars, at the

rate of two per cent; for all above ten thousand dollars, at the rate of one per cent. The same commissions shall be allowed to administrators. In all cases such further allowance may be made as the court may deem just and reasonable for any extraordinary service, but the total amount of such extra allowance must not exceed the amount of commissions allowed by this section. All contracts between an executor or administrator and an heir, devisee, or legatee, for a higher compensation than that allowed by this section, shall be void. [C. L. $ 4225*.

Cal. C. Civ. P. ? 1618*.

SPECIFIC PERFORMANCE.

3935. Contracts for sale of real estate. Specific performance. When a person who is bound by contract in writing to convey any real estate, dies before making the conveyance, and in all cases when such decedent, if living, might be compelled to make such conveyance, the court may make a decree authorizing and directing his executor or administrator to convey such real estate to the person entitled thereto. [C. L. § 4208.

Cal. C. Civ. P. 1597.

3936. Id. Petition. Notice. Hearing. On the presentation of a verified petition by any person claiming to be entitled to such conveyance from an executor or administrator, setting forth the facts upon which the claim is predicated, the court must appoint a time and place for hearing the petition, which shall be upon notice. [C. L. § 4209.

Cal. C. Civ. P. ? 1598*.

3937. Id. Decree authorizing possession. If, after a full hearing upon the petition and objections, and examination of the facts and circumstances of the claim, the court is satisfied that the petitioner is entitled to a conveyance of the real estate described in the petition, a decree authorizing and directing the executor or administrator to execute a conveyance thereof to the petitioner must be made; but the entry of the decree shall give the person entitled to the conveyance a right to the possession of the lands contracted for and to hold the same according to the terms of the intended contract in like manner as if a conveyance had been made in pursuance of the decree. [C. L. § 4211*.

Cal. C. Civ. P. ? 1600*.

3938. Id. Denied when right doubtful. If upon a hearing, as hereinbefore provided, the right of the petitioner to have a specific performance of the contract, is found to be doubtful, the court must dismiss the petition without prejudice to the right of the petitioner, who may, at any time within six months thereafter, proceed by action to enforce specific performance thereof. § 4213.

Cal. C. Civ. P. 1602.

[C. L.

3939. Id. Substitution of parties. If the person entitled to the conveyance dies before the commencement of proceedings therefor under this chapter, or before the completion of the conveyance, any person entitled to succeed to his rights in the contract, or the executor or administrator of such decedent, may for the benefit of the person so entitled, commence such proceedings or prosecute any already commenced, and the conveyance must be so made as to vest the estate in the persons entitled to it, or in the executor or administrator, for their benefit. [C. L. § 4217.

Cal. C. Civ. P. 2 1606.

3940. Id. Decree may direct surrender of possession. The decree provided for in this chapter may direct the possession of the property therein described to be surrendered to the person entitled thereto, upon his producing the deed and certified copy of the decree when, by the terms of the contract, possession is to be surrendered. [C. L. § 4218.

Cal. C. Civ. P. 1607.

ACCOUNTS.

3941. When account to be rendered.

Contents. Six months after his appointment, also within thirty days after the expiration of the time within which creditors must present their claims, and at any other time when required by the court, either upon its own motion or upon the application of any person interested in the estate, every executor or administrator must render for the information of the court an account of his administration, under oath, showing the sums of money received by him and from what sources, the amounts expended by him, a statement of all claims presented against the estate and the names of the claimants, and all other matters necessary to show the condition of its affairs. [C. L. § 4226*.

Cal. C. Civ. P. ? 1622*.

Annual account of trustee after distribution,

3977. Statement of claims presented, form, ? 3867. 3942. Id. Hearing, notice of. When any account is rendered for settlement, the court must appoint a day for the settlement thereof, of which the clerk must give notice. [C. L. § 4237*.

Notice, time, form, etc., 22 4026-4037.

Cal. C. Civ. P. 1633*. See Cal. Sup. '93, p. 1022. 3943. Id. Vouchers shall be produced. In rendering his account the executor or administrator must produce and file vouchers for all charges, debts, claims, and expenses which he has paid, which must remain in the court: and he may be examined on oath touching such payments, and also touching any property and effects of the decedent, and the disposition thereof. When any voucher is required for other purposes, it may be withdrawn on leaving a certified copy on file. If a voucher is lost, or for other good reason cannot be produced on the settlement, the payment may be proved by the oath of any competent witness. [C. L. § 4235.

Cal. C. Civ. P. ? 1631.

3944. Id. Oral proof when vouchers not produced. On the settlement of his account, he may be allowed any item of expenditure not exceeding twenty dollars for which no voucher is produced if such item be supported by his own uncontradicted oath positive to the fact of payment, specifying when, where, and to whom it was made; but such allowances in the whole must not exceed five hundred dollars against any one estate; and if upon such settlement of accounts it appear that the debts against the deceased have been paid without the affidavit and allowance prescribed by statute, and it shall be proven by competent evidence to the satisfaction of the court that such debts were justly due, were paid in good faith, that the amount paid was the true amount of such indebtedness over and above all payments, or set off, and that the estate is solvent, it shall be the duty of the said court to allow the said sum so paid in the settlement of said accounts. [C. L. § 4236.

Cal. C. Civ. P. 1632.

3945. Final account with petition for distribution. Notice. If the account mentioned in the preceding sections be for a final settlement, and a petition for the final distribution or for final distribution and partition of the estate be filed with said accounts, the notice of the filing of account for settlement must state those facts. On the settlement of said account, distribution or distribution and partition of the estate to all entitled thereto may be had in the manner hereinafter provided without further notice or proceedings. [C. L. § 4238*. Cal. C. Civ. P. 1634*. See Cal. Sup. '93, p. 1022. Final account and petition for distribution, 3952. 3946. Settlement of account, when conclusive. The settlement of the account and the allowance thereof by the court, or upon appeal, is conclusive against all persons in any way interested in the estate, saving, however, to all persons laboring under any legal disability, their right to move for cause to re-open and examine the account, or to proceed by action against the executor or administrator, either individually or upon his bond, at any time before final

distribution; and in any action brought by any such person, the allowance and settlement of the account is prima facie evidence of its correctness. [C. L. § 4241.

Cal. C. Civ. P. ? 1637.

Correction of mistakes in settlements, ? 4048.

3947. Reference of account. Compensation. The court may appoint one or more referees to examine the accounts and make report thereon, subject to confirmation; and may allow a reasonable compensation to the referees, to be paid out of the estate of the decedent. [C. L. § 4240*. Cal. C. Civ. P. ? 1636*.

CHAPTER 12.

DISTRIBUTION AND PARTITION.

PARTIAL DISTRIBUTION.

3948. Petition for partial distribution. Notice. At any time after the lapse of four months from the issuance of letters testamentary or of administration, any heir, devisee, or legatee may present his petition to the court for the legacy or share of the estate to which he is entitled, to be given to him upon his giving bonds, with security, for the payment of his proportion of the debts of the estate. Notice of such application must be given. [C. L. §§ 4256, 4257*.

Cal. C. Civ. P. ?? 1658, 1659*.

3949. Id. When allowed. Order. Bond. If at the hearing it appears that the estate is but little indebted, and that the share of the party applying may be allowed to him without loss to the creditors of the estate, the court must make an order in conformity with the prayer of the applicant, requiring:

Each heir, legatee, or devisee obtaining such order, before receiving his share or any portion thereof, to execute and deliver to the executor or administrator a bond, in such sum as shall be designated by the court, with sureties to be approved by the judge or clerk, payable to the executor or administrator, and conditioned for the payment, whenever required, of his proportion of the debts due from the estate, not exceeding the value or amount of the legacy or portion of the estate to which he is entitled.

2. The executor or administrator to deliver to the heir, legatee, or devisee, the whole portion of the estate to which he may be entitled, or only a part thereof, designating it. If, in the execution of the order, a petition is necessary between two or more of the parties interested, it must be made in the manner hereinafter prescribed. The costs of these proceedings shall be paid by the applicant, or if there be more than one, shall be apportioned equally among them. [C. L. $4259.

Cal. C. Civ. P. 2 1661.

3950. Id. Action on bond. If it becomes necessary that any part of any such bond should be paid, the court, after notice and hearing, must make a decree accordingly, designating the amount and giving a time within which the payment must be made. If the money is not paid as ordered, an action may be maintained by the executor or administrator on the bond. [C. L. § 4260*.

Cal. C. Civ. P. 2 1662*.

3951. Delivery of entire estate, when no debts. Unless it satisfactorily appear to the court that the rents, issues, and profits of the real estate for a longer period are necessary to be received by the executor or administrator, wherewith to pay the debts of the deceased, or that it will probably be necessary

to sell the real estate for the payment of such debts, the court, at the end of the time limited for the presentation of the claims against the estate, must direct the executor or administrator to deliver possession of all the real estate to the heirs-at-law or devisees. [C. L. § 4108.

Cal. C. Civ. P. 2 1453.

FINAL DISTRIBUTION AND PARTITION.

3952. Petition for final account and settlement, when to be presented. When all the debts are paid, or sooner, if before that time all the property of the estate has been sold, or there are sufficient funds in his hands for the payment of all the debts due by the estate, and the estate be in a proper condition to be closed, the executor or administrator must render a final account and pray a settlement of his administration. [C. L. § 4254.

Cal. C. Civ. P. ? 1652.

3953. Distribution, how made. Death of minor heir. Supplementary account. Upon the final settlement of the accounts of the executor or administrator, or at any subsequent time, upon the petition of the executor or administrator or of any heir, legatee, or devisee, and upon notice, 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 the 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 such child's 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 may order notice of the settlement of such supplementary accounts, and refer the same as in other cases of the settlement of accounts. [C. L. § 4261*.

Cal. C. Civ. P. ? 1665*.

Succession, 2824-2850. Distribution of homestead, ?? 2829–2831, 3847.

3954. Id. Decree to specify shares. Action to recover. In the order or decree, the court must name the persons and the proportions or parts to which each shall be entitled, and such persons may demand and sue for in any court of competent jurisdiction and recover their respective shares from the executor or administrator or any person having the same in possession. § 4262*.

Recording of decree, effect, & 4040.

[C. L.

Cal. C. Civ. P. ? 1666*. 3955. Id. Advancements considered. Conclusiveness of decree. All questions as to advancements made, or alleged to have been made, by the decedent to his heirs, may be heard and determined by the court and must be specified in the decree assigning and distributing the estate; and the final judg ment or decree of the court is binding on all parties interested in the estate, subject only to be reversed, modified, or set aside on appeal. [C. L. § 4277*.

Cal. C. Civ. P. 1686.

Validity of decrees, ?? 3779, 3780, 3946. Advancements, ?? 2763, 2841-2845.

3956. Id. Taxes must be paid before decree. Before any decree of distribution of an estate is made, the court must be satisfied, by the oath of the executor or administrator, or otherwise, that all state, county, and municipal taxes, legally levied upon personal property of the estate, have been fully paid. [C. L. § 4265.

Cal. C. Civ. P. 2 1669.

Assessment of estates of deceased persons, ?? 2527, 2529. Similar section, ? 2613.