Simons

Plaintiff brought this action to obtain the judgment of the court that he was entitled to certain funds in the hands of the administrator of his deceased wife’s estate. Plaintiff prevailed in the action, and this appeal is from the judgment in his favor and from the order denying motion for a new trial, and is presented by statement. A general demurrer to the complaint was overruled. The complaint and a supplementary amended complaint allege and the court found: That defendants Otis T. and Jane Bedell were husband and wife and *344 the parents of deceased, Jennie B. Simons; July 10, 1890, one Julius Collins conveyed to said Jennie B. (before her marriage to plaintiff) lot 9 of the Abbott Kinney tract in the city of Los Angeles for the consideration of two thousand five hundred dollars, which was paid by the said Jane Bedell; thereafter, to wit, about January 1, 1892, and in contemplation of the marriage between the said Jennie and plaintiff, in addition to whatever right she had derived by said deed, Mrs. Bedell gave to her said lot 9; soon thereafter, to wit, about January 18, 1892, in contemplation of said marriage, said Jane executed and delivered to her said daughter Jennie a…

I dissent. Conceding the validity of the contract stated in the principal opinion, it is nothing more than this: In consideration that Mrs. Simons would deed to her mother the Hew York property and would not make a will, defendants Bedell would convey to plaintiff, after the death of Mrs. Simons, the Los Angeles property. As Mrs. Simons owned the Los Angeles property, and under the contract was expected to die such owner, the title which defendants were to convey was what they would inherit from their daughter. Had they conveyed this to the plaintiff, their deed would not have authorized plaintiff to recover the property from the administrator. He would take as heir, and an heir cannot recover the property from the administrator before distribution. Bone-brake is administrator and holds the property as such. The estate has not yet been distributed. (McDaniel v. Pattison, 98 Cal. 86 ; Siddal v. Harrison, 73 Cal. 560 .)

After the death of his wife plaintiff was appointed administrator and had the Los Angeles property sold and then resigned. A successor was appointed, and this suit was brought. In a suit for specific performance, which this is, it seems clear to me that the money…