McPike

This is an appeal by plaintiff from a judgment against him and from an order denying his motion for a new trial, in an action for the partition of certain real property.

January 20, 1906, Olive Coulson died, leaving a last will and testament, which was duly admitted to probate, and Allen Small qualified as executor thereof. At the time of her death the three parcels of real property, the subject of this controversy, stood of record in her name, and she left as her surviving spouse Robert Coulson. September 26, 1906, Robert Coulson filed a petition under the provisions of section 1723, Code of Civil Procedure, and after ten days’ notice by publication in a daily newspaper a hearing was had, and the court made its decree, adjudging that the property here involved was community property,' and vested absolutely in Robert Coulson, as the surviving spouse of Olive Coulson, upon her death. The executor of the estate of Olive Coulson, deceased, although in possession of the property at the time, received no personal notice of said proceedings, and consequently did not appear therein.

September 6, 1906, Robert Coulson made and executed a deed to an undivided one-third of said real…