I dissent. Conceding the validity of the contract stated in the principal opinion, it is nothing more than this: In consideration that Mrs. Simons would deed to her mother the Hew York property and would not make a will, defendants Bedell would convey to plaintiff, after the death of Mrs. Simons, the Los Angeles property. As Mrs. Simons owned the Los Angeles property, and under the contract was expected to die such owner, the title which defendants were to convey was what they would inherit from their daughter. Had they conveyed this to the plaintiff, their deed would not have authorized plaintiff to recover the property from the administrator. He would take as heir, and an heir cannot recover the property from the administrator before distribution. Bone-brake is administrator and holds the property as such. The estate has not yet been distributed. (McDaniel v. Pattison, 98 Cal. 86; Siddal v. Harrison, 73 Cal. 560.)
After the death of his wife plaintiff was appointed administrator and had the Los Angeles property sold and then resigned. A successor was appointed, and this suit was brought. In a suit for specific performance, which this is, it seems clear to me that the money must take the place of the real estate. Such it was *351when the alleged contract was made, and it seems quite obvious to me that, even conceding that Otis T. was authorized to contract for his wife, the contract was within the statute of frauds. Wittenbrock v. Cass, 110 Cal. 1, seems altogether in point, except that this is a much plainer case than that was. There is not and cannot be a pretense of part performance here. Supposing, therefore, that Mrs. Bedell did ratify the agreement by accepting the deed, the contract is void.
Nor do I think there is any evidence to sustain the finding that Mrs. Bedell accepted the deed with full knowledge of the alleged contract. To the contrary, all the evidence upon the subject is to the effect that she was told that her husband had only told Mrs. Simons that they would convey the property if his wife, Mrs. Bedell, approved of it, subject to a mortgage for the amount of the debt on the New York property. Plaintiff’s testimony and his letters all tend to show this.
I also think the case is, in principle, within the decision in Jackson v. Torrence, 83 Cal. 521, and that there was grave error in the admission in evidence of the statements of plaintiff’s wife —not made at the time of the alleged contract, but subsequent thereto—as against Mrs. Bedell. It is assumed that the property had all belonged to Mrs. Bedell as her separate property.
Suggestion is made, however, that the evidence discloses that all the property was community property of Mr. and Mrs. Bedell. If so, then title to the New York property did not pass by Mrs. Bedell’s deed to Mrs. Simons, and there was no consideration for the alleged agreement.
It might be argued with some plausibility that upon the facts found a suit might be maintained to cancel the deed to the New York property, but I am unable to comprehend any relief to which the plaintiff is entitled under those facts in regard to the Los Angeles property.
Henshaw, J., concurred in the dissenting opiniofL.