Estate of Ricaud

California Superior Court, San Francisco County

Estate of Ricaud

1 Myrick 158

CourtSuperior Court of California, County of San Francisco

DecidedAugust 23, 1877

DocketNo. 7754

StatusPublished

This text of 1 Myrick 158 (Estate of Ricaud) is published on Counsel Stack Legal Research, covering Superior Court of California, County of San Francisco primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Estate of Ricaud, 1 Myrick 158 (Cal. Super. Ct. 1877).

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Opinion

The widow heretofore applied for family allowance and homestead, which was resisted by the executors and granted by the Court. She now applies to have all the expenses paid out of the estate.

By the Court:

The fees of the appraisers, reporter and interpreter will be paid by the executors, they being officers of the Court. As to the other costs, the statute requires a cost bill to be filed within five days after the judgment, lío cost bill was filed within that time, therefore payment thereof is denied.

March 6, 1878.

The widow of deceased applies under Sec. 1658, C. C. P., for distribution to her of a share of the estate. It is objected by the executors that the widow is not an heir within the meaning of that section. It is true that she is not an heir in the strict sense of the word; during the life of the husband she has an interest in the community property, her enjoyment thereof depending upon the death of the husband. Upon his death she receives no property in the way of heirship; she simply receives title to [159]*159what was hers. But I am of opinion that the Legislature, by the use of the words “heir, devisee or legatee,” did not intend to use the words in the strict technical sense, but in the larger sense of including all who succeed to or have the estate. A purchaser from an heir is not an heir or devisee; yet I see no objection to his having partial distribution. In many sections of the Code the word “heir” is used in such connection that it must be held to include the widow, or the Code would be largely inoperative. In Sec. 1675 provision is made for partition between “ heirs, devisees or legatees ”; if the widow is not necessarily intended to be within these words, it would follow that there could be no partition of community property.

I am of opinion that a widow can have partial distribution the same as can an heir, devisee or legatee. The objections are overruled.

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The widow heretofore applied for family allowance and homestead, which was resisted by the executors and granted by the Court. She now applies to have all the expenses paid out of the estate.

By the Court:

The fees of the appraisers, reporter and interpreter will be paid by the executors, they being officers of the Court. As to the other costs, the statute requires a cost bill to be filed within five days after the judgment, lío cost bill was filed within that time, therefore payment thereof is denied.

March 6, 1878.

The widow of deceased applies under Sec. 1658, C. C. P., for distribution to her of a share of the estate. It is objected by the executors that the widow is not an heir within the meaning of that section. It is true that she is not an heir in the strict sense of the word; during the life of the husband she has an interest in the community property, her enjoyment thereof depending upon the death of the husband. Upon his death she receives no property in the way of heirship; she simply receives title to [159]*159what was hers. But I am of opinion that the Legislature, by the use of the words “heir, devisee or legatee,” did not intend to use the words in the strict technical sense, but in the larger sense of including all who succeed to or have the estate. A purchaser from an heir is not an heir or devisee; yet I see no objection to his having partial distribution. In many sections of the Code the word “heir” is used in such connection that it must be held to include the widow, or the Code would be largely inoperative. In Sec. 1675 provision is made for partition between “ heirs, devisees or legatees ”; if the widow is not necessarily intended to be within these words, it would follow that there could be no partition of community property.

I am of opinion that a widow can have partial distribution the same as can an heir, devisee or legatee. The objections are overruled.

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Bluebook (online)

1 Myrick 158, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-ricaud-calsuppctsf-1877.