Panaud v. Jones.

allows him no compensation. The judges of the supreme court of Mexico, and the judges of the superior tribunals, are prohibited from taking upon themselves the charge of testamentary executors, but the inferior judges are not. (2 Feb. Mej. 156, sec. 2.) Febrero, in treating of the persons who may be executors, says, in the section last cited from his work:-" Likewise "the escribano who authenticates the testament may be execu"tor, because, besides that he is not prohibited, he thereby "derives only labor and responsibility in fulfilling the will of "the testator, and the obligation to give a strict account of his "trust," &c. But if he derives any benefit under the will, he cannot be executor. It appears, therefore, that the person named in the will as executor, is competent to attest or authenticate it in any form, unless he is also named as heir or legatee, or is in some way to derive profit or advantage under it, which would not belong to him in case of intestacy. The law regards the office of such an executor simply as a friendly and gratuitous office.

Whether it was the duty of Alviso's executors to make a new inventory of his effects, when a perfect inventory appears to be embodied in his will, it is unnecessary to inquire. (See Aiora de Partitionibus, Pars 1, Cap. 2, No. 17.) The material question is, not whether the executors faithfully and punctually performed all the duties required of them, but whether their neglect or omission of duty invalidates the will. I think not.

I have thus examined the various objections made by the plaintiff's counsel upon which he claimed that the will of Alviso was inoperative and void, and have come to the conclusion, that it was made in due form, before the proper authority, was attested by a sufficient number of competent witnesses, and remains unaffected by any omission or neglect of the executors, occurring subsequent to the death of the testator.

The remaining point for examination is, whether Chevallo, the executor, had power to sell and did sell, in legal manner, the premises in dispute to the defendant. And this presents two questions for consideration: First, Whether Chevallo, who was one of two executors named in the will, had power to sell without joining with his co-executor; and Second, Whether,

Panaud v. Jones.

admitting his sole authority, Alviso could direct by his will, that the premises in question should be sold for the payment of his debts.

The first question is whether Chevallo alone, had the power to make a valid transfer of the property. It may be conceded that, in ordinary cases where two executors are named in a will, both must join in the execution of the powers conferred therein. But, it must also be conceded, that the testator may make dispositions in his will to vary this legal rule. The intention of the testator to be gathered from the instrument itself, is the guide. When that is ascertained, it becomes the law of the case. This is the rule of the common law. It is more especially the rule of the civil law, and of the Spanish and Mexican law. "Voluntas testatoris pro lege habetur," says the Pandects. (L. 35, sec. 3, de Hæredib. instituend.) "La volun"tad del testador tiene fuerza de ley," says one of the maxims of Spanish and Mexican jurisprudence. (3 Pan. Mej. 346, Reg. 384.) The executor is understood to accept the charge, not for gain, but as the last friendly office which he can perform for the deceased, and he looks to the dispositions contained in the will as the rule by which his conduct will be judged.

In the case before us, the testator gives to each one of his executors all the power over his property which he himself possessed as fully as in law may be required, in order that they take possession thereof, and sell it as to them may seem meet, so that with the proceeds they may fullfil the dispositions of his will within the legal term, or within such longer term as they may find necessary, and for that purpose he prolongs the term prescribed by law. The testator thus conferred all the power which he himself had over his property, not to his executors jointly, but to each one of them, and consequently each one was authorized to dispose of the property for the purposes mentioned in the will. "When several executors "are named," says Sala, (2 Sala Mej. 224, sec. 4,) "they will "administer upon the estate at the time and in the manner pre"scribed by the testator, whether jointly, or in succession, or "so that the person first named shall have the administration,

Panaud v. Jones.

"which is understood to be commanded, when the testator "shall name each one of them in solidum." That is, when the testator confers upon each one of several executors, as in this case, full power to administer, he who first enters upon the administration, shall proceed in it to its conclusion, without being obliged to advise with the others, and without their having a right to intermeddle in any respect. (2 Feb. Mej. 160, sec. 8.) In this case, Chevallo first commenced the administration: by the law above cited, the other had no right to interfere in it. It does not appear that he ever did; on the contrary, it is rendered at least probable by the testimony, that he advised and assented to the sale by Chevallo to the defendant. I think Chevallo alone had power to sell, without joining with his co

executor.

The view above presented affords also an answer to the objection, that the sale was a private sale, and not at auction. The testator gave to Chevallo as full power to sell as he himself possessed, and the general rule of the Spanish law that sales by executors must be at auction, does not apply. In point of fact, as appears from the record, the premises were sold at a price which was proved to have been above their value at that time. The deed of sale was authorized by the judge of the place, who signs it as such, and records it in the book of records of the juzgado. One-third of the purchase money was paid at the time; the balance was tendered and refused before the first instalment became due, and was brought into court, and was placed, and still remains, on deposit for the use of the estate. The least the plaintiff could have done, if he wished to rescind the sale, would have been to offer to repay the money which the heirs whom he represents had received from the defendant.

I proceed now to the last point which I propose to examine; and that is, whether Alviso had the power to direct the disposition of the property in the manner specified in the will.

Alviso died a widower in 1846, his wife having died some years before; and it is alleged that, on her decease, one undivided half of the common property became vested in her children by in

Panaud v. Jones.

heritance, and that Alviso had no right to dispose of it in any manner. The law respecting the property of husband and wife in California has undergone but little alteration in consequence of the passage of the act of 17th April, 1850, defining the rights of husband and wife. Section 1, of that act declares that "all property, both real and personal, of the wife owned "by her before marriage, and that acquired afterwards by gift, bequest, devise, or descent, shall be her separate property; "and all property, both real and personal, owned by the hus"band before marriage, and that acquired by him afterwards, "by gift, bequest, devise, or descent, shall be his separate pro

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perty." It is further provided in the same act as follows: "Section 2. All property acquired after the marriage by either "husband or wife, except such as may be acquired by gift, bequest, devise, or descent, shall be common property. Sec"tion 6. The husband shall have the management and control "of the separate property of the wife, during the continuance "of the marriage," &c. "Section 9. The husband shall have "the entire management and control of the common property, "with the like absolute power of disposition as of his own separate estate. The rents and profits of the separate property "of either husband or wife shall be deemed common property. "Section 10. No estate shall be allowed to the husband as "tenant by courtesy upon the decease of his wife, nor any es"tate or dower be allowed to the wife upon the decease of her "husband." So far we understand the statute of California to be a correct exposition of the Spanish law respecting the property of husband and wife. But in section 11, we apprehend there is a wide departure from it. That section is as follows: "Upon the dissolution of the community by the death of either "husband or wife, one-half of the common property shall go "to the survivor, and the other half to the descendants of the "deceased husband or wife, subject to the payment of the "debts of the deceased. If there be no descendants of the "deceased husband or wife, the whole shall go to the survivor, "subject to such payment." Now this is manifestly a deviation from the principles of the civil and the Spanish law, unless the

Panaud v. Jones.

words "debts of the deceased," in this section, shall be construed as including all debts of the community contracted for the common benefit, whether by the deceased or by the survivor. If this construction may be put upon it, then it is consistent with the civil and Spanish law, and what is more, is consistent with reason and justice. I have referred to this statute somewhat at length, not because it controls this case, but for the reason that, with the exception above stated, it contains a clear and succinct statement of the Spanish law respecting the property of husband and wife.

According to Ley 1, tit. 3, lib. 3, of Fuero Real, which is Ley 1, tit. 4, lib. 10 of the Novissima Recopilacion, the property acquired by husband and wife, or by either of them, during the marriage, whether by purchase or contract, or through their labor and industry, as well as the fruits, profits, and increase arising from their separate estates, which belonged to each before marriage, is held by them in common and denominated Gananciales. But (id. Ley 2) that which comes to either by inheritance, or gift, or by royal grant to the husband for military service, is the separate property of the party thus acquiring it. And in the conjugal society, which differs in some important particulars from the conventional, it makes no difference, with respect to the right of equality in the participation of gains, how much, either of capital or labor, each party may have contributed towards their production. (1 Feb. Mej. 219, sec. 4.)

By Ley 1, tit. 12, part 4, which is the same as Ley 5, tit. 4, lib. 10 of the Novissima Recopilacion, & No. 2774 of the Pandectas Mejicanas, vol. 2, page 447, it is provided that the husband, during the continuance of the marriage, may freely alienate and dispose of the common property, with the exception of that which belongs to the class of castrenses or quasi castrenses, without the consent of the wife, and such alienation shall be valid, unless it be proved that it was made with intention to defraud her.

Ley 14 of Toro, the same as Ley 6, tit. 4, lib. 10 of the Novissima Recopilacion, and No. 2775 of the Pandectas Meji canas, vol. 2, page 448, declares that, the marriage being