Updegraff v. Trask

18 Cal. 458, 1861 Cal. LEXIS 232

• Court: California Supreme Court
• Decided: July 1, 1861
• Status: Published

Opinion

Baldwin J. delivered the opinion of the Court.

Cope, J. concurring.

The principal question in this case is, whether the heir can maintain ejectment for realty left by the ancestor, a considerable period elapsing after the. death, and no administration having been taken on the estate and there being no debts.

We think, independent of other qualification than the fact that no administration exists upon the estate, that the heir may maintain this action. He has a right of entry, subject only to the claim of the administrator, when there is one. This follows from his general title cast by the descent, which is only qualified by the particular statutory right given the administrator. (See Beckett v. Selover, 7 Cal. 216; see also Bufford v. Holliman, 10 Texas, 564, where the subject is fully discussed under a not dissimilar statute of that State.)

It is not necessary to notice other points.

Judgment affirmed.