In re Wickersham's Estate

Citations

• 7 Cal. Unrep. 70
• 70 P. 1079
• 1902 Cal. LEXIS 919

Syllabus

<p>Community Property—Will.—A Husband has No Power to Provide in his will for a sale of community property except to pay debts.</p> <p>Community Property.—An Executor’s Return of Sale of Community property under a power in the husband’s will is defective where it fails to show that the property was sold for the payment of debts', though it appears that it was sold under the power in the will.</p> <p>Community Property—Power of Sale in Will.—A Wife’s Interest in community property is adversely affected by a sale thereof under a power in her husband’s will.</p> <p>Community Property—Sale Under Power in Will—Appeal.— Under Code of Civil Procedure, sections 153, 940', 956, providing that the notice of appeal shall state the judgment, order, or specific part thereof, appealed from, and that the court on appeal from a judgment may review the verdict or decision and any intermediate order or decision which involves the merits or affects the judgment, the court, on appeal from an order of sale of community property under a power in the husband’s will, can review error in including the wife’s interest in the order, though it was correct as to the interest of the husband.</p> <p>Community Property—Sale Under Power in Will.—On Appeal from an order of sale of community property under a power in the husband’s will on the ground that the wife’s interest in the property was erroneously included, the executors of the husband could not represent the wife’s estate, their interest being adverse.</p> <p>Community Property—Sale Under Power in Will—Appeal.—Under Code of Civil Procedure, section 1453, providing that heirs or devisees may themselves, or jointly with the executor, maintain an action for the possession of real estate or to quiet title to the same, the heirs of a deceased person are entitled to all actions and defenses necessary to the protection of their property, except those depending on the right of possession; and hence the heirs of a deceased wife are entitled to prosec