Wheeler

William L. Carman died in San Francisco September 7, 1850, leaving a last will and testament, by which he devised and bequeathed all his estate to the plaintiff, and appointed the defendant and one Adams his executors. The will was admitted to pro *164 bate January 10, 1851, and on the 20th of that month the executors qualified and entered upon the duties of their office. Carman, in his lifetime, had caused to be surveyed a tract of about seventy-two acres of land, in the form of a parallelogram, in the vicinity of Mission and Twenty-third streets, in San Francisco, to which he made claim, and on which he made certain improvements. About thirty acres of this tract lay to the west of the San José road, and was subsequently ascertained to be included within the limits of the Noe grant, while the remainder, about forty-two acres in extent, was a part of the pueblo lands of San Francisco, and outside of the lands covered by the Van Ness ordinance. After the executors had qualified, they caused an inventory of the assets of the estate, with an appraisement thereof, to be prepared and filed in the probate court, and in said inventory was included, as a part of the assets of the estate,…