
    [No. 20878.
    Department One.
    February 27, 1928.]
    Joseph Devereaux, as Administrator of the Estate of Lillian Devereaux, Deceased, Respondent, v. Josie Anderson et al., Appellants.
      
    
    
       Descent and Distribution (12) — Title of Heirs. Upon the death of the ancestor, his personal property vests in the heirs subject to debts, the creditors .of the estate having the superior right.
    £2] Executors and Administrators (40, 142) — Personal Property Assets — Collection and Protection — Actions — Personal or Representative Capacity. In an action by the surviving spouse as administrator, to recover personal property of the estate which was subject to debts due to creditors, it is no defense that, prior to his appointment, the survivor, as sole heir, made a gift of the property to the defendants; and that he was seeking to have it set aside to him as exempt; since defendants’ claim should be presented in the administration proceedings on the administrator’s claim to it as exempt.
    Appeal from a judgment of the superior court for Pierce county, Card, J., entered July 15, 1927, upon findings in favor of the plaintiff, in an action for the recovery of assets belonging to a decedent’s estate.
    Affirmed.
    
      John E. Belcher, for appellants.
    
      J. Chas. Dennis, for respondent.
    
      
      Reported in 264 Pac. 423.
    
   Mitchell, J.

Joseph Devereaux and Lillian Devereaux were husband and wife for ten years until her death on April 5, 1927] in Pierce county, Washington. During that time they acquired the personal property involved in this controversy. On April 22, 1927, he was appointed and qualified as administrator of her estate. Shortly thereafter, as administrator, he brought this action against defendants J osie Anderson, Ruth Yarco and Eva Tallant to recover possession of certain personal property alleged to belong to the estate which they held and refused to deliver upon his demand. They answered that, after Mrs. Devereaux ’s death and before plaintiff was appointed administrator, he, Joseph Devereaux, being the only heir at law of the deceased, gave the personal property to Josie Anderson and that they, the defendants, held the property in pursuance of that gift. Upon the trial, findings of fact, conclusions of law and judgment were entered for the plaintiff. The defendants have appealed.

As we understand, the. appellants contend that the husband, there being no child,

“ . . . immediately upon the death of his wife was vested with the title to all the community real and personal property, subject only to the payment of the community debts,”

and that he had the right to give the personal property to the appellants. He denied making the gift and the court made no finding with reference thereto.

Appellants are in error as to the vesting of title to personal property upon the death of the owner. It descends to the executor or administrator for the payment of expenses, debts, legacies and for distribution of the residue. In this case the personal property involved is of the value of $500, which is all that is left to meet acknowledged debts against the estate in the sum of $619. The creditors have a right over any heir to the property, and the court was right in ordering it delivered to the administrator to be used for that purpose under the directions of the court.

'[2] Appellants have injected into the case the claim that Joseph Devereaux as surviving spouse was, upon petition, having this property set aside to him in lieu of a homestead as exempt and that he should not in good faith be permitted to deny his gift of it to these appellants. This suit, however, is not by him in his individual capacity, but in his representative capacity. If appellants claim anything under him as an individual or heir, it should be asserted by them in an orderly way in the administration proceedings, if and when he attempts to have anything set aside or distributed to him, rather than by attempting to interfere with the rights of those who, in the law, have the first claim upon the property. Besides, the proof in this case, introduced by the appellants, shows that in the petition to set aside property in lieu of the homestead only a small amount of the personal property was mentioned, none of which was the property appellants are now claiming.

Affirmed.

Mackintosh, C. J., Parker, French, and Tolman, JJ., concur.  