It is the settled doctrine of this Court that upon the death of a person in California before the passage of the Probate Act of April 22d, 1850, his estate immediately vested in his heirs or devisees, and they became personally responsible for his debts. (Grimes v. Norris, 6 Cal. 624; Tevis v. Pitcher, 10 Cal. 465; De la Guerra v. Packard, 17 Cal. 193; Soto v. Kroder, 19 Cal. 97; Downer v. Smith, 24 Cal. 114; People v. Senter, 28 Cal. 502; Wilson v. Castro, 31 Cal. 420; Coppinger v. Rice, 33 Cal. 408.) In the last mentioned case we say: “We agree with counsel for respondent that it is too late to disturb the rule which was announced in Grimes v. Norris, 6 Cal. 624;” and after reviewing several of the cases above cited, it is added: “These cases must now be regarded as establishing, beyond further controversy, the proposition that, on the death of an intestate, under the Mexican sys*92.tem, ‘the heirs succeed immediately to the estate, and become personally responsible for the debts of the deceased,’ irrespective of the question whether the heirs were adult or minor, and that no administration, in the sense of the common law, was needed or could be had at anj'- time. It may be that the distinction for which the counsel for appellant so learnedly contends should have been made, but it was not, and it is now too late to draw it. It is impossible to estimate the mischief which might result from a departure from a rule which for so long a time has been regarded by both the bench and the bar as finally settled.” This doctrine is decisive of this ease, but there are other points that are also fatal to the claim of title derived from the probate proceedings.
The Court found as a fact that the Alcalde exercised the power of administering upon the estates of persons dying intestate in the pueblo and district of San Francisco, and of alienating their real estate; that the Judge of First Instance exercised the powers of a Court of general jurisdiction in all matters of law, equity, admiralty, and successions, and in all civil cases and matters of whatsoever nature, and exercised the powers of administering upon the estates of persons dying intestate in said pueblo and district, and of alienating their real estate; and that the people of said pueblo and district submitted to and acquiesced in, and sustained the Alcalde and Judge of First Instance in the exercise of those powers, and regarded their acts as valid and binding in such matters.
I acknowledge the full force of the reasons and suggestions advanced in Fowler v. Smith, 2 Cal. 39; Grignon’s Lessee v. Astor, 2 How. U. S. 319; McNair v. Hunt, 5 Mo. 301, and other cases cited by the respondent in support of proceedings had under circumstances somewhat similar to those surrounding this case. The officers under whom these proceedings were had, and most of the people of San Francisco, were Americans, more or less conversant with the rules of the common law, but almost entirely ignorant of the civil law and of the changes and modifications effected by either *93the Spanish or Mexican law. It was understood that the laws in force before the change in flags still continued in. force, but they bad no access to those laws. The names of the Courts and officers were continued or revived, but there was no one who could define their power or duties. In the throng and rush of business numerous controversies arose, and the necessity for Courts for their decision was imperative. Under such circumstances every reasonable presumption should be extended to sustain their proceedings. It is unnecessary to notice the numerous citations of the plaintiff’s counsel from the books of the Spanish and Mexican law, to sustain the jurisdiction exercised by those Courts, for they were not organized under and were not guided by those laws. I shall not attempt, in this case, to ascertain the limits of the jurisdiction of those Courts; and the necessity of undertaking the inquiry is becoming less every year, and it may reasonably be anticipated that the question will soon become of no practical importance. I shall assume that each of those Courts had jurisdiction of the estates of intestates. But in view of the propositions first laid down—that an estate vested in the heirs of the intestate, they taking the estate by the same title by which the intestate held it, but subject, of course, to the payment of his debts—the Court had no authority to proceed de officio and take charge of the estate, as if the title vested in the Court for the purpose of administration. Uor would the administration amount to a proceeding in rem, for the Court did not have or take possession of the estate. The principal purpose of the administration was to cause the debts of the intestate to be paid, by enforcing the lien or charge upon the estate for their payment. The administrator did not acquire the title to the estate, but it remained in the heirs until it passed to the purchaser at the sale ordered and made for the payment of the debts. He did not represent the land in any sense, but only sold and conveyed it in obedience to the order of the Court, and until it was sold and conveyed the heirs held possession of and represented the real estate as fully in all respects as *94if they had acquired it by purchase instead of descent. Their title, therefore, could be divested only by proceedings to which they were parties, and the probate proceedings were rather proceedings inter partes than in rem.
Neither of those Courts cquld acquire jurisdiction of the estate except upon the representation, in some form of pleading, of the existence of the jurisdictional facts—facts showing that judicial action was necessary. A petition for letters of administration was filed with the Alcalde on the 28th of December, 1849; and on the same day the Alcalde ordered that letters of administration issue, and on the following day they were issued. On the 11th day of January, 1850, the administrator filed a petition requesting the Alcalde “to make and issue an order to him, authorizing him to set up and sell all the real estate of the said deceased; ” and on the same day the Alcalde made an order directing the administrator to “set up and sell all the real estate of the said deceased,” and to execute proper deeds therefor to the purchasers; but neither in the petition nor the order were any grounds or reasons stated for the sale." The administrator filed a petition in the Court of First Instance, on the 25th of January, 1850, reciting his appointment, the petition and the order for the sale of the real estate, and praying the Court “to take jurisdiction of the premises,” to confirm his appointment as administrator, and the order of sale, and to direct him to proceed with the sale with the same effect as if the order had been made by that Court; and on the same day the Court made an order confirming the proceedings stated in the petition, and ordered that the petitioner “be appointed and continue administrator of the said estate, and that he bo empowered to sell the real estate at public auction, for the purpose of paying the debts of said deceased, with like powers as are prescribed in said order of sale made in that behalf by the said Alcalde; ” and that the administrator •publish a notice requiring the claims against said estate to be presented to the administrator within four weeks after the first publication of the notice. The administrator sold *95and conveyed the lot of which the premises in controversy form a part on the 14th of February, 1850, and on the next day he conveyed the same to the purchaser.
Passing by the questions of the sufficiency of the petition to give the Alcalde jurisdiction to issue the letters of administration, and of the necessity of giving notice, either actual or constructive, to the heirs of the intestate, of the application for letters of administration, and as to whether the petition filed in the Court of First Instance stated facts sufficient to authorize the Court to order that the petitioner “be appointed and continue administrator of said estate,” I will notice the question of the authority of either of those Courts to make the order for the sale of the real estate.
An allegation in the petition or application upon which the order of sale is sought, that the intestate, at the time of his death, owed debts, is indispensable, and without it the Court has no authority to proceed to order the sale of the property of the estate. The existence of debts is a jurisdictional fact, and must be averred in order to show the necessity of a sale. The fact of the death of the intestate, and that he left property within the territorial jurisdiction of the Court, are not more clearly jurisdictional facts than is the fact that he was indebted at the time of his death. In this respect the rule would be the same were probate proceedings held to be proceedings in rem, for evidently the •Court could neither take possession of the estate, nor order its sale, in the absence of any necessity for such action. The absence of any allegation in either petition, that the intestate, at the time of his death, owed any debt, is fatal to the orders of sale.
There is a further objection to those orders, which, in my opinion, is insuperable.
The heirs were not notified of the proceedings. They 'resided in the State of Ohio, and the brief time elapsing between the filing of the petitions and the making of the order of sale rendered it impossible for them to have been either actually or constructively notified of the pendency of *96the proceedings. The title was in them, and they could not he divested of it by proceedings of which they had no notice. If it is considered, as is sometimes done, that the several steps in the matter of the estate, commencing with the application for letters, constitute only one proceeding, the difficulty is not avoided, because there was no notice to the heirs of the petition to the Alcalde for letters of administration, or the petition to the Judge of First Instance for confirmation of the appointment by the Alcalde. If the title to the estate vested in the heirs, the necessity of notice to them of the pendency of the proceedings, before the order of sale was made, is too apparent to admit of argument.
The judgment, in my opinion, should he reversed, and the cause remanded for a new trial.