Bond to be given by dis

first execute and deliver to the executor or administrator a bond in
such sum as shall be designated by the probate judge, and with
sureties to be approved by him, payable to the executor or admin- tributee.
istrator, conditioned for the payment by the heir, legatee or de-
visee, whenever required, of his proportion of the debts due from
the estate.

[Form No. 205, Appendix.]

§ 254. Such decree may order 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.

§ 255. If in the execution of such decree, any partition be necessary between two or more of the parties interested, it shall be made in the manner hereinafter prescribed.

§ 256. The costs of the proceedings authorized by the preceding section shall be paid by the applicant, or if there be more than one, shall be apportioned equally amongst them.

Decree may order whole or

part of share of heir, etc., delivered.

Where partition necessary.

Costs.

Order for pay

§ 257. Whenever any bond has been executed and delivered under the provisions of the preceding sections, and the executor or ment of bond. administrator shall ascertain that it is necessary for the settlement of the estate to require the payment of any part of the money thereby secured, he shall petition the court for an order requiring the payment, and shall have a citation issued and served on the party bound, requiring him to appear and show cause why the order shall not be made. At the hearing, the court, if satisfied of the necessity of such payment, shall make an order accordingly, designating the amount and giving a time within which it shall be paid. If the money be not paid within the time allowed, an action may be maintained by the executor or administrator on the bond.

bond.

Action on

When final dis

be had.

§ 258. Upon the final settlement of the accounts of the executor or administrator, or at any subsequent time, upon the application of the executor or administrator, or of any heir, legatee or devisee, tribution or the grantee of the heir, legatee or devisee, the court shall proceed to distribute the residue of the estate, if any, among the persons who by law are entitled.

A statement of the receipts and disbursements of the executor or

may

Supplementary final account.

administrator, since the rendition of his final accounts, shall be re-. ported and filed at the time of making such distribution, unless distribution of the real estate only be made, and a settlement thereof, together with an estimate of the expenses of closing the estate, shall be made by the court, and shall be included in the decree, or the court or judge may order notice of the settlement of such supplementary account, and may refer the same as in other cases of the settlement of accounts. (a.)

See Secs. 233 and 247, ante.

[Form No. 208, Appendix.]

The probate court has no power to direct that the portion of an estate of an intestate, originally allotted to one of the heirs at law, a nonresident, shall be distributed among other heirs, if the nonresident heir shall fail to appear and claim it within a year, Pyatt v. Brockman, 6 Cal. 418.

The money should be paid into the State treasury, where it must remain until claimed by the owner, or in case of his death, by his representatives. Ibid.

Personal property bequeathed to a particular legatee upon conditions which are not accepted, does not pass under the residuary clause, but is distributed as undisposed property. Richardson v. Sinkler, 2 De Saussure, 127.

A legatee before his legacy becomes due, may sue the executor and compel an acand security. if he is wasting the assets or incumbering the estate. Hopkins v.

[Statutes 1865-'6, p. 767, Sec. 10.-Takes effect sixty days after passage.]

§ 10. The two hundred and fifty-ninth section of the said Act is hereby amended so as to read as follows:

§ 259. In the decree the Court shall name the persons and the proportions or parts to which each shall be entitled, and such persons shall have the right to demand and recover their respective shares from the executor or administrator, or any person having the same in possession. Such decree shall be conclusive as to the rights of heirs, legatees, or devisees, subject only to be reversed, set aside, or modified on appeal, in the manner and within the time provided by law.

maue.

Dн, vi waived, and proceedings had in the manner provided in sections one hundred and fifty- Notice. seven, to and including one handred and sixty of this act, in regard to an application for the sale of land by an executor or administra

tor.

D

[

j

1

Jurisdic

tion not divest

The court may order such further notice to be given as it tion for parti-
If martition be applied for, as hereinbefore ed by such de-

cree of distribu

Sec. 260 A. Applicable only to San Francisco.-Passed March

31st, 1866.

[Statutes 1865-'6, p. 521, Sec. 5.-Took effect on passage.]

§ 5. No order or decree for the distribution of any property of any decedent shall be made by the Probate Judge until the administrator or administrators, executor or executors, executrix or executrices, (as the case may be) shall have filed in the Probate Court his, or her, or their good and sufficient affidavit that all personal property taxes due the State, and said city and county, that have attached to or accrued against the estate of such decedents have been fully paid.

A certified copy of the order of their appointment, and of the decree assigning and distributing the estate, shall be issued to them as their warrant, and their oath shall be indorsed thereon.

Warrant to commissioners.

One com

Upon consent of the parties, or when the court shall deem it missioner may proper and just, it shall be sufficient to appoint one commissioner

(a) Amended May 20th, 1861; amended portions in italics.

ties.

only, who shall have the same authority and be governed by the same rules as if three were appointed. (a.)

[Forms Nos. 210, 217, Appendix.]

Real estate in § 262. If the real estate shall be in different counties, the prodifferent coun-bate court may, if it shall judge proper, appoint a commissioner or different commissioners for each county; and in such cases the estate in oooh county shall be divided separately, as if there was no other

[Form No. 222, Appendix.]

Partition may be had by the real owner of the share, whether it be the heir, the

(a) Amended 1861; amended portion in italics.

devisee or the alienee from the heir or devisee or any subsequent alienee. The real owner is put in the situation of the heir or devisee for the purpose of a partition. Estate of Castro, April Term, 1861.

Shares to be set out by metes

§ 265. The several shares in the real and personal estate shall be set out to each individual in proportion to his right, by such metes and bounds, or description, that the same can be easily dis- and bounds. tinguished, unless two or more of the parties interested shall consent to have their shares set out, so as to be held by them in common and undivided.

[Form No. 223, Appendix.]

Whole estate

certain conditions

§ 266. When any such real estate cannot be divided without prejudice or inconvenience to the owners, the probate court may may be assignassign the whole to one or more of the parties entitled to share ed to one on therein, who will accept it, always preferring the males to the females, and among children, preferring the elder to the younger; provided, the parties so accepting the whole shall pay to the other parties interested their just proportion of the true value thereof, or shall secure the same to their satisfaction, or in case of the minority of such party then to the satisfaction of his or her guardian; and the true value of the estate shall be ascertained and reported by commissioners. (a.)

equality of par

tition.

§ 267. When any tract of land or tenement shall be of greater value than either party's share in the estate to be divided, and can- Payments for not be divided without injury to the same, it may be set off by the commissioners appointed to make partition to either of the parties who will accept it, giving preference as prescribed in the preceding sections; provided, the party so accepting shall pay or secure to one or more of the others such sums as the commissioners shall award, to make the partition equal, and the commissioners shall make their award accordingly; but such partition shall not be established by the court until the sums so awarded shall be paid to the parties entitled to the same, or secured to their satisfaction. [Form No. 223, Appendix.]

§ 268. When it cannot otherwise be fairly divided, the whole, or

(a) Amended May 20th, 1861; amended portion in italica

J