Clayton

After due consideration of this cause in bank, we are satisfied with the conclusion reached and the opinion rendered when it was in Department; and, for the reasons given in said opinion, the judgment awarding the defendant the possession of the animals mentioned in the fifth finding is reversed, with directions to the superior court to enter judgment upon the findings in favor of the plaintiff for the possession of said animals, or for the value thereof, as found by the court, in case a delivery thereof to the plaintiff cannot be had.

I dissent. Section 3440 of the Civil Code reads as follows: “ Every transfer of *528 personal property, other than a thing in action, or a ship or cargo at sea, or in a foreign port, and every lien thereon, other than a mortgage, when allowed by law, and a contract of bottomry or respondentia, is conclusively presumed, if made by a person having at the time the possession or control of the property, and not accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things transferred, to be fraudulent and therefore void against those who are his creditors while he remains in possession, and the successors in interest of such creditors, and against any persons on whom his estate devolves in trust for the benefit of others than himself, and against purchasers and encumbrancers in good faith subsequent to the transfer.”

The property of a person dying intestate passes to his heirs, but it passes to them subject to the control of the probate court, and to the possession of an administrator for purposes of administration. (Civ. Code, sec. 1384.) The purposes of administration embrace the payment of expenses of administration, family…