Plaintiff appeals from a judgment entered after the sustaining of defendant's demurrer to the complaint and the failure of plaintiff to amend his pleading within the time allowed by the court. Upon suggestion of the death of Julia McCarthy the executor of her last will has been substituted as respondent. *Page 512
Patrick Holland sued as surviving husband of Mary Anne Holland, deceased, to quiet title to a fund deposited by said Mary Anne Holland during her lifetime in the bank of defendant, The Hibernia Savings and Loan Society. There are four counts in which it is elaborately pleaded that prior to her death Mrs. Holland, by an instrument in writing, apparently made the account payable to herself or Julia McCarthy or to the survivor; that thereafter Julia McCarthy caused the money to be transferred to another and new account in the names of "Julia McCarthy or Mary Anne Holland, payable to either or the survivor"; and that all of the original sum still remained on deposit in the said bank except five hundred dollars drawn by Julia McCarthy during the life of Mrs. Holland. There are allegations, which we need not set forth in full, to the effect that Julia McCarthy by fraud, undue influence, and by plying Mrs. Holland with liquor, succeeded in wrongfully securing the fund in question, at a time when Mrs. Holland was incompetent lawfully to dispose of said property.
One of the points made by the demurrer to the complaint was that plaintiff did not have capacity to sue. This objection was, in our opinion, well taken.
While conceding that in California there is no authority supporting the right of one taking by inheritance as plaintiff herein to sue to quiet title to personal property of his decedent, nevertheless appellant bases his assertion of such right upon the propositions (1) that upon the death of Mrs. Holland, intestate, all of her estate, real and personal, vested in her heirs (citing Civ. Code, secs. 1383, 1384, 1386 and 1402; Estate of Patterson, 155 Cal. 626, (132 Am. St. Rep. 116, 18 Ann. Cas. 625, 26 L. R. A. (N. S.) 654, 102 P. 941];Raulet v. Northwestern National Ins. Co., 157 Cal. 213, [107 P. 292], and other authorities to the same effect); (2) that in California a tenant in common may sue alone without joining his cotenants (Code Civ. Proc., citing sec. 384; Cassin v.Nicholson, 154 Cal. 497, [98 P. 190], and other authorities). While his premises are undoubtedly correct, the conclusion drawn by appellant is erroneous. Indeed one of the sections cited in his brief (1384 of the Civil Code) provides that the property of an intestate passes to his or her heirs "subject to the control of the probate court." Therefore, in the absence of special equitable reasons (of a *Page 513 sort which are not set forth in this complaint), no heir as such would be permitted to sue directly to quiet title to property belonging to the estate of his intestate. While title to the property of his intestate vests in an heir upon the death of such intestate, his title does not carry with it the right of immediate enjoyment. The rights and duties of the administrator of the estate intervene between vesting of title and right to possession. Section 1452 of the Code of Civil Procedure, authorizing such suits by heirs or devisees, is limited to real property. Therefore, generally speaking, and in the absence of some default or some fraud or a refusal on the part of the administrator to collect the property of the estate, the heir may not, in his individual capacity, bring an action to collect debts due the estate or one to preserve title to the personal property. (Robertson v. Burrell, 110 Cal. 568, [42 P. 1086]; Bollinger v. Bollinger, 154 Cal. 695-707, [99 P. 196]; Miller v. Ash, 156 Cal. 544-556, [105 P. 600];Rogers v. Schlotterback, 167 Cal. 35-56, [138 P. 728]; 18 Cyc. 355.)
Our conclusion upon this branch of the case removes the necessity of deciding whether or not plaintiff is estopped to prosecute this action by the decision of the district court of appeal in McCarthy v. Holland, 30 Cal.App. 495, [158 P. 1045], a case which we refused to transfer to this court on petition to that end.
The judgment is affirmed.
Henshaw, J., and Angellotti, C. J., concurred.