Abbildungen der Seite
PDF
EPUB

perty, after payment of debts and expenses of administration, unless otherwise limited by marriage settlement, is distributed as follows:

If the deceased leaves a surviving husband or wife, and only one child, or the lawful issue of one deceased child, in equal shares to each; if more than one child, one third goes to the surviving consort and the balance to the children in equal shares. The children of a deceased child take by the right of representation; but if all of the descendants are in the same degree of kindred to the decedent they share equally. If the decedent leaves no husband or wife but leaves issue, the whole estate goes to such issue.

If the deceased leaves no children, the surviving consort takes one half, and the other half goes to the decedent's father and mother in equal shares, and if either be dead the whole of said half goes to the other. If there be no father or mother, then one half goes in equal shares to the brothers and sisters of the decedent, and to the children or grandchildren of any deceased brother or sister by right of representation.

If the decedent leaves no issue, nor husband or wife, the estate goes to his father and mother in equal shares, or, if either be dead, then to the other. If there be neither issue, husband, wife, father, nor mother, then in equal shares to the brothers and sisters and to the children or grandchildren of any deceased brother or sister by right of representation. If deceased leaves a surviving husband or wife, and no issue, father, mother, brother, or sister, nor children or grandchildren of deceased brothers or sisters, the whole estate goes to such survivor.

If the deceased leaves none of the aforementioned, the estate goes to the next of kin in equal degree; and if there are two or more collateral kindred in equal degree, but claiming through different ancestors, those claiming through the nearest ancestor must be preferred.

If the decedent leaves several children, or one child and the issue of one or more children, and any such surviving child dies under age not having been married, all the estate that came to the deceased child by inheritance from such decedent goes in equal shares to the other children of the same parent and to the issue of any such other children who are dead, by right of representation. If at the death of such child who dies under age not having been married, all the other children of his parents are also dead, and any of them have left issue, the estate that came to such child by inheritance from its parent descends to the issue of all the other children of the same parent.

If the decedent be a widow or widower and leaves no kindred, and any portion of the estate was common property of such decedent and his or her deceased spouse, such common property shall go to the children of such deceased spouse and the descendants thereof, and if none, to the father of such deceased spouse, or, if he be dead, to the mother, or, if both be dead, to the brothers and sisters of such deceased spouse, in equal shares, and to the lawful issue of any deceased brother or sister of such spouse by right of representation.

If the decedent leaves no husband, wife, or kindred, and there be no heirs to take his estate or any portion thereof under the preceding clause, the estate escheats to the school fund of the State. (C. C. § 1386.)

The foregoing provisions as to the inheritance of the husband and wife from each other apply only to the separate property of the decedents.

Upon the death of the wife the entire community property without administration belongs to the surviving husband, except such portion as may have been set apart to her by judicial decree for her support and maintenance. Such portion is subject to her testamentary disposition, and in the absence of such disposition goes to her heirs exclusive of her husband. Upon the death of the husband one half of the community property goes to the wife and the other half is subject to the testamentary disposition of the husband, and in the absence of such disposition goes to his descendants; and in the absence of both disposition and descendants is distributed in the same manner as his separate estate. Upon the death of the husband the entire community property is subject to his debts, the family allowance, and expenses of administration.

The degree of kindred is established by the number of generations, and each generation is called a degree. (C. C. § 1389.)

Kindred of the half blood inherit equally with those of the whole blood, except where the estate came to the intestate by descent, devise, or gift of some one of his ancestors, when the half blood is excluded. (C. C. § 1394.)

Whenever testator has a child born, after making will, either in his lifetime or after death, such child being unprovided for by settlement or mentioned in will, such child succeeds to same portion of real and personal estate as he would if testator had died intestate. (C. C. § 1306.)

When any testator omits to provide in will for any child or children, or for issue of any deceased child, unless it appears from said will that such omission was intentional, such child or the issue of such child must have the same share in the estate of such testator as if testator had died intestate, and succeeds accordingly. (C. C. § 1307.)

There is a succession tax upon all property which shall pass by will or by succession from any resident dying seized or possessed of the same, or, if a non-resident, any such property within the State. This tax as to estates not exceeding twenty-five thousand dollars is from one to five per cent., governed by the relationship to the deceased, and this rate is called the "primary rate." And on larger estates this primary rate is increased from one and one half to three times the primary rate. From this tax are exempted: 1. Property trans

ferred to corporations and institutions exempted by law from taxation; corporations, societies, etc., devoted to charitable, benevolent, educational, or public purposes. 2. Property of the clear value of ten thousand dollars transferred to the widow or minor child of a decedent, and of four thousand dollars transferred to a husband, lineal issue, lineal ancestor of the decedent, or any child to whom the decedent for not less than ten years prior to such transfer stood in the mutually acknowledged relation of a parent, provided such relationship began at or before the child's fifteenth birthday and was continuous for such ten years thereafter; or any lineal issue of such child. 3. Property of the clear value of two thousand dollars transferred to a brother or sister or a descendant of a brother or sister of the decedent; a wife or widow of a son or the husband of a daughter of decedent. 4. Property of the clear value of fifteen hundred dollars transferred to a brother or sister of the father or mother, or a descendant of such brother or sister. 5. Property of the clear value of one thousand dollars transferred to the brother or sister of the grandfather or grandmother of decedent or to a descendant of such brother or sister. 6. Property of the clear value of five hundred dollars transferred to any person other than those herein before named; or who shall be a stranger in blood to the decedent or body politic or corporate.

Divorces.

Divorces may be granted in this State for the following grounds: 1st. Adultery. 2d. Extreme cruelty. 3d. Willful desertion for one year. 4th. Willful neglect for one year. 5th. Habitual intemperance for one year. 6th. Conviction of felony.

Plaintiff must have been a resident of this State twelve months before the suit can be brought, and of the county in which it is brought for three months next preceding the commencement of the action.

A defendant is served with summons as in any civil case, but no decree can be rendered by default; nor on admissions of the defendant; nor on the uncorroborated evidence of the parties.

In actions for divorce the court must file its decision and conclusions of law as in other cases, and if it determines that no divorce shall be granted, final judgment must thereupon be entered accordingly. If it determines that the divorce ought to be granted, an interlocutory judgment must be entered declaring that the party in whose favor the court decides is entitled to a divorce. This judgment may be appealed from within six months. When one year has expired after the entry of such interlocutory judgment, and no appeal therefrom shall have been taken within the six months or motion for a new trial made, the court on motion of either party or upon its own motion may enter the final judgment, which judgment restores the parties to the status of single persons and permits either to remarry. But if any appeal shall have been taken or motion for new trial made, final judgment shall not be entered until such motion or appeal has been finally disposed of, and not then if the motion has been granted or judgment reversed. The death of either party after entry of interlocutory judgment does not impair the power of the court to enter a final judgment, but such entry shall not validate a marriage contracted by either party before the entry of such final judgment.

The court may allow alimony and expenses of litigation to the wife, and order the same to be paid by the husband. The court may enforce such order by imprisonment. From the order directing the payment of alimony an appeal may be taken to the supreme court. When the wife has any cause of action for divorce as provided in the Code, she may, without applying for a divorce, maintain an action against the husband for permanent support and maintenance of herself and her children.

Dower. There is no dower in California. See Married Women.

Estates of Deceased Persons. Administration of the estate of a person dying intestate must be granted to some one or more of the persons hereinafter mentioned, the relatives of the deceased being entitled to administer only when they are entitled to succeed to his personal estate, or to some portion thereof; and they are respectively entitled thereto in the following order: The surviving husband or wife, or some competent person whom he or she may request to have appointed; the children; the father or mother; the brothers; the sisters; the grandchildren; the next of kin entitled to share in the distribution of the estate; the public administrator; the creditors; any person legally competent. If the decedent was a member of a partnership at the time of his decease, the surviving partner must in no case be appointed administrator of his estate. But such surviving partner may be an executor. A non-resident cannot act as an administrator, but the surviving spouse, although non-resident, may nominate any competent resident, by petition, as such administrator. Corporations organized under the laws of this State for that purpose may be appointed to act as executor, administrator, guardian, etc.

Bonds are required of such administrator in double the value of the personal property, and of the annual rents of real property; and upon sales of real property by the administrator he is required to give bonds in such amount as the court may order. The same statutes as to bonds apply to executors, but the instrument under which executor is appointed may waive such bonds.

An allowance is made to the widow upon application to the court in such sum as the court may determine and the value of the estate and the necessities of the family will justify. This allowance is made even if the estate be insolvent, but does not extend beyond a period of one year from the time of the issuance of letters, if the estate be insolvent. Immediately upon receipt of letters testamentary or of administration the executor or administrator must publish in some newspaper of the county a notice to creditors to present

their claims with the necessary vouchers. The notice must require the creditor to present his claim to the executor or administrator, within ten months, if the estate exceeds ten thousand dollars in value, and within four months if less than that sum, within the time limited after the first publication of said notice, and the creditor must present his claim to the executor or administrator accompanied by his affidavit or that of his agent that the claim is justly due and that no payments have been made thereon and that there are no offsets against the same to affiant's knowledge. There is no difference in the proof required between residents and non-residents.

Claims. All claims arising upon contract, whether the same be due, not due, or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever; but if the claimant can by affidavit satisfy the court that he had no notice by reason of being out of the State, he may present his claim at any time before a decree of distribution is entered.

The administrator or executor must allow or reject the claim, and if he approve it a judge of the superior court must then approve or reject it; and if approved by the judge it is then filed as a valid claim, and paid in due course of administration. A claim duly presented and allowed by the administrator or executor and the superior judge has the force and effect of a judgment against the estate, but no execution can be issued. It must be paid in due course of administration. After its allowance and approval it bears interest at the legal

rate.

If an action be pending against the decedent at the time of his death, the plaintiff must present his claim as in other cases, and no recovery can be had in the action without proof of such presentation.

If judgment has been rendered against the decedent in his lifetime for the recovery of money, no execution can be issued thereon, after death, but it must be presented like any other claim. If an execution has been actually levied upon such judgment before the death, the property levied on may be sold for the satisfaction thereof. A judgment for the recovery of real or personal property, or the enforcement of a lien thereon, may be enforced notwithstanding the death of the defendant.

If a claim is rejected either by the judge or administrator or executor, the claimant must within three months after the date of its rejection, if it be then due, or within two months after it becomes due, bring suit in the proper court, otherwise his claim is forever barred. If he recover judgment it is then filed as other claims for payment.

No claim can be allowed which is barred by the statute of limitations. If the claim is not barred at the death of the debtor, it will not be barred until one year after the issuance of letters testamentary or of administration. During the pendency of proceedings for the settlement of the estate no claim which has been presented and allowed is affected by the statute of limitations.

No suit can be brought upon a claim unless it be first presented for allowance, except that an action may be brought by the holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, when all recourse against any other property of the estate is expressly waived in the complaint. In such action no counsel fees shall be recovered unless the claim be first presented. If, however, a homestead was declared upon the property mortgaged, the claim must in all cases be presented for allowance, and can be enforced against the homestead only after the other property of the estate has been exhausted.

Claims against an estate are paid in the following order, namely: 1. Funeral expenses. 2. Expenses of last sickness. 3. Debts having preference by the laws of the United States. 4. Judgments rendered against the decedent in his lifetime, and mortgages in the order of their date, so far as the proceeds of the mortgaged property will avail. 5. All other demands against the estate. The wages of an employee for services rendered within sixty days next preceding the death of his employer, not exceeding one hundred dollars, rank in priority next after funeral expenses and expenses of last sickness. Expenses of administration and allowance for support of family for not exceeding one year after death of decedent are payable prior to all claims except funeral expenses and expenses of last sickness. If the estate does not exceed fifteen hundred dollars in value, and there be a widow or minor children, the court may assign the entire estate for their benefit after the payment of the expenses of the last sickness, funeral expenses, and expenses of administration. Homesteads. Upon the death of either the husband or the wife the court having jurisdiction of the estate may, on its own motion or upon petition therefor, set apart for the use of the surviving husband or wife, or, in case of his or her death, to the minor children of the decedent, all property exempt from execution, including the homestead selected, designated, and recorded, provided such homestead was selected from the common property or from the separate property of the person selecting or joining in the selection of the same. If none has been selected, designated, and recorded, or, in case the homestead was selected by the survivor out of the separate property of the decedent, the decedent not having joined therein, the court must select, designate, and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife and the minor children; or, if there be no surviving husband or wife, then for the use of the minor children, out of the common property; or if there be no common property, then out of the real estate belonging to the decedent. When such property is set apart for the use of the family, if the decedent left a widow or surviving husband and no minor child, such property is the property of the widow

or surviving husband. If the decedent left also a minor child or children, the one half of such property belongs to the widow or surviving husband and the remainder to the child, or in equal shares to the children, if there be more than one, or to the minor child or children, if there be no surviving spouse.

If the property set apart be a homestead, selected from the separate property of the decedent, the court can only set it apart for a limited period, to be designated in the order, and the title vests in the heirs of the deceased subject to such order. If the homestead selected by the husband and wife, or either of them, during coverture, and recorded while both were living, was selected from the community property, it vests on the death of the husband or wife absolutely in the survivor. If selected from the separate property of either the husband or wife without his or her consent, it vests upon the death of a person from whose property it was selected, in his or her heirs, subject to the power of the superior court to assign it for a limited period to the family of the decedent.

In either case, it is not subject to the payment of any debt or liability contracted by or existing against the husband or wife, or either of them, previous to or at the time of the death of such husband or wife, other than incumbrances placed thereon by the joint act of husband and wife, which incumbrances must be paid out of the general assets of the estate, if the funds of the estate be adequate for such purpose.

The surviving husband or wife of any deceased person, or if none be living, then the next of kin of such decedent, may, without procuring letters of administration, collect of any bank any sum which such decedent may have left on deposit with such bank at the time of death, not exceeding five hundred dollars. Any bank in which such deposit shall have been made shall pay the same upon receiving an affidavit stating that the depositor is dead; that affiant is either the surviving husband or wife, or that there is no surviving husband or wife, and that affiant is the next of kin and entitled to distribution, and that the whole amount left by the decedent on deposit in all banks in this State does not exceed five hundred dollars. Legacies are due and deliverable at the expiration of one year after the testator's decease. At any time after four months from granting letters testamentary or of administration, the court, if satisfied that the estate is but little indebted, may direct that the legacy or share of the estate to which any heir, devisee, or legatee may be entitled be given to him upon the execution by him of a bond conditioned for the payment by him of his proportion of the debts due from the estate. At any time after the expiration of the time limited for the presentation of claims the court, after the payment of the claims presented, and the expenses of administration, may distribute whatever estate remains in the hands of the executor or administrator among the persons entitled thereto. Legacies bear interest after one year from issuance of letters. Unless a will is proved within four years after testator's death, a conveyance by one claiming a right of succession is valid.

Evidence. In general the production and admission of evidence in courts of this State is governed by the rules of evidence as declared by the Code of Civil Procedure. All persons are competent as witnesses, except those of unsound mind, children under ten years of age who appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly, and parties or assignors of parties to an action or proceeding, or persons in whose behalf an action is prosecuted against an executor or an administrator, upon a demand or claim against the estate of the deceased, as to any matter of fact occurring before the death of such deceased person, and persons holding certain confidential relations to each other. Except in action by one against the other, husband and wife cannot in civil actions be examined against each other without their consent, nor can either during the marriage or afterwards without such consent be examined as to any communication made by one to the other during the marriage.

Certified copies of public writings of this State under the hand and seal of the official custodian are admissible as evidence in like cases and with like effect as the original writing. (C. C. P. § 1893.)

--

A copy of the written law, or other public writing, of any State or country, attested by the certificate of the officer having charge of the original, under the public seal of the State or country, is admissible as evidence of such law or writing. (C. C. P. § 1901.) Execution. Execution may issue from any court immediately on the rendition of the judgment, or at any time within five years thereafter, and as often within that period as any portion of the judgment remains unsatisfied. Judgments may be enforced after the lapse of five years, by leave of court, upon motion or by judgment for that purpose founded upon supplemental pleadings. To keep a judgment alive, suit should be brought upon it, as upon any other debt, within five years. (C. C. P. § 685.) Judgment notes are not known.

The writ issues on demand of the plaintiff, in the name of the people, sealed with the seal of the court, directed to the sheriff, subscribed by the clerk, referring intelligibly to the judgment, and giving directions for its execution. It is returnable in not less than ten nor more than sixty days after its receipt by the sheriff. (C. C. P. §§ 682, 683.)

Justices' executions are similar to those in other courts except that they are not sealed, and are signed by a justice instead of by a clerk. They may also be renewed by the justice before the expiration of the time fixed for their return. (C. C. P. §§ 902, 903.) See, also, Insolvency Laws; Redemption; Stay of Execution.

Exemption. The following property is exempt from execution for any debt, except it be for the purchase price of such property, or the debt secured by mortgage, lien, or pledge

thereon, to wit: 1st. Chairs, tables, desks, and books, to the value of two hundred dollars. 2d. Necessary household, table, and kitchen furniture of the debtor, including one sewingmachine, stoves, stove-pipes and stove furniture, wearing apparel, beds, bedding, bedsteads, hanging pictures, oil paintings and drawings drawn or painted by any member of the family, family portraits and their necessary frames, provisions and fuel actually provided for individual or family use sufficient for three months, and three cows and their sucking calves, four hogs with their sucking pigs, and food for such cows and hogs for one month, also one rifle, one shot-gun, one piano. 3d. Farming utensils, or implements of husbandry, not exceeding in value one thousand dollars, of the judgment debtor, also two oxen, or two horses, or two mules and their harness, one cart or buggy and two wagons, and food for such animals for one month, also seed grain or vegetables reserved or on hand for planting within six months, not exceeding two hundred dollars in value; and seventy-five beehives, and one horse and vehicle belonging to any person who is maimed or crippled, the same being necessary to his business. 4th. Tools or implements of a mechanic or artisan, notary's seal, office furniture, and records; instruments and library and necessary office furniture of a surgeon, physician, surveyor, or dentist, necessary to the exercise of their profession; books, professional libraries and office furniture of attorneys, judges, ministers of the gospel, editors, and school and music teachers, and all the indexes, abstracts, books, papers, maps, and office furniture of searcher of records necessary to be used in his profession, and instruments actually used by music teachers in giving instructions; also typewriters used by owner in making his living, also one bicycle. 5th. A miner's cabin, not exceeding five hundred dollars in value, also his sluices, pipes, tools, etc., necessary for his business, not exceeding five hundred dollars in value, and two horses, mules, or oxen, and their harness, and food for the same for one month, when necessary to be used for any windlass, derrick, car, pump, or hoisting gear; and the miner's claim worked by him, and not exceeding one thousand dollars in value. 6th. Two oxen, horses, or mules, and their harness and food for one month, and one cart, wagon, dray, truck, coupé, hack, or carriage for one or two horses, by the use of which a cartman, drayman, truckman, huckster, peddler, hackman, teamster, or other laborer habitually earns his living, and one horse, vehicle, and harness used by physician, surgeon, constable, or minister of the gospel in the legitimate practice of his profession or business, with food for such animals for one month. 7th. One fishing-boat and net not exceeding the value of five hundred dollars, the property of any fisherman, by the lawful use of which he earns a livelihood. 8th. Poultry worth not more than seventy-five dollars. 9th. Seamen and seagoing fishermen's wages and earnings not exceeding three hundred dollars. 10th. Earnings for personal service, rendered within thirty days of levy, if the defendant swears they are necessary for the use of his family residing in the State, and supported in whole or in part by his labor; but only one half of such earnings are exempt where the debt is for necessaries of life. 11th. Shares in homestead associations, not exceeding in value one thousand dollars, if the debtor has not a homestead selected; nautical instruments and wearing apparel of any master, officer, or seaman of any vessel. 12th. All moneys, benefits, etc., accruing or growing out of any life insurance, if the annual premiums paid do not exceed five hundred dollars; if they exceed that sum, a like exemption exists, which shall bear the same proportion to the moneys, immunities, etc., so accruing or growing out of such insurance that five hundred dollars bears to the whole annual premiums paid. 13th. All fire-engines, etc. 14th. All firearms, etc., required by law to be kept by any person, and one gun selected by the debtor. 15th. All court-houses, jails, public offices, buildings, cemeteries, etc. 16th. All material not exceeding one thousand dollars purchased in good faith for use in or about to be applied in good faith to the construction, alteration, or repair of any building, mining claim, or other improvement, except upon a judgment recovered for its price or foreclosure of a mortgage thereon. 17th. All machinery, etc., necessary for constructing surface or artesian wells to the value of one thousand dollars. Shares of stock in any building and loan association to value of one thousand dollars. (C. C. P. § 690.)

Garnishee Process. Any debtor of a debtor, or person having in possession personal property of such debtor, not capable of manual delivery, may be served with a copy of the execution or attachment, and thereupon he becomes liable to pay to the attaching or execution creditor or to the sheriff for him the amount of his indebtedness, or to deliver to the sheriff the personal property held by him, etc. Garnishees under an execution may also be brought before the court or a referee to answer, under oath, concerning debts due, or property belonging to, the judgment debtor, and may be forbidden to transfer or otherwise dispose of such debt or property until a suit can be prosecuted therefor on behalf of the creditor, and disobedience of such order may be punished as a contempt. See Attach

ment.

Homestead.

A homestead to the extent of five thousand dollars in value, consisting of the dwelling-house where the claimant resides, together with the land on which it is situated, may be selected by the husband, or, in the case of his failure to do so, by the wife. Such selection must describe the premises and state their value, and must be acknowledged in the same manner as a conveyance, and filed for record in the county recorder's office. After such filing the premises therein described are exempt from execution or forced sale, except in satisfaction of liens existing prior thereto or created by both husband and wife, and can be aliened or incumbered only by an instrument executed and acknowledged by both husband and wife. Such selection may be made from the community property or from

« ZurückWeiter »