tions of the testator, given prior to his decease. November 17, 1892, a petition for a family allowance to the widow was filed on her behalf by the executor, which was contested by the appellant; and, after a hearing thereon, the court made an order allowing the sum of $50 per month, amounting to $1,500. This allowance was paid by the executor, and allowed to him in the settlement of his final account. December 3, 1892, the court made a decree of distribution, by which it distributed one-half of the real estate to the widow in fee as the survivor of the community, and the other undivided one-half to her for the term of her natural life, and, after directing the payment of the legacies out of the money in the hands of the executor, distributed to her in her own right, as the survivor of the community, one-half of the balance of said money, and one-half of the other articles of personalty; and the other half of said articles and the remaining sum of money, viz., $1,834.37, were distributed to her, to hold and enjoy during her life, and at her death to the three children. From the orders making the family allowance, settling the final account, and from the decree of distribution Elizabeth Buckley has appealed.

1. It is claimed by the appellant that the court could not make an order for a family allowance to the widow, under section 1466 of the Code of Civil Procedure, unless there had been previously set apart to her the property authorized by section 1465, and it had been determined that the property thus set apart was insufficient for her support; that, as the inventory showed there was property of the estate out of which a homestead might have been set apart to the widow, and, as no application had been made therefor, the court had no jurisdiction to make the order of family allowance. The right of a family to an allowance for its support is not, however, contingent upon a previous order setting apart a homestead for its use. Whether a homestead be set apart or not, section 1466 confers upon the court the power, in its discretion, to "make such reasonable allowance out of

the estate as shall be necessary for the maintenance of the family according to their circumstances during the progress of the settlement of the estate." The circumstances and condition of the family, as well as those of the estate, may be such that the court would more wisely exercise its discretion in making a pecuniary allowance for the support of a family out of the estate than in setting apart to it a homestead; and, if the widow is content with such allowance without having a homestead set apart to her, it would seem that the other heirs ought not to complain. A homestead is primarily the place of abode for the family, and it might be that although, if one were set apart, they would thus be furnished with an abiding place, they would not receive a sufficient income for their support, and the expense of maintaining the homestead would be disproportionate to their necessities; while, on the other hand, the widow might be better cared for by receiving an allowance sufficient for her support, and residing elsewhere than upon a portion of the property of the estate. It was not requisite that the widow should herself petition for the allowance. The order could be made upon a petition by any one in her behalf, and the fact that the executor was also her son should not prevent a petition made by him on her behalf from receiving the same consideration by the court as though he had not held that office. The allowance to the executor in the settlement of his account of the amount which he had been directed to pay to the widow as a family allowance is not objected to, except as the allowance itself was objected to. As that allowance is sustained, the credit to the executor of the amount paid under the order was properly allowed by the

court.

2. At the hearing, upon the settlement of the final account, the appellant made the objection that the watches and chain mentioned in the supplemental inventory were not accounted for in said account, and thereupon evidence of their value was taken by the court.

It is recited in the bill of exceptions that, after

hearing this evidence, the court rendered its decision, "charging the executor with $50 as the value of said watches and chain, to which decision contestant then and there excepted." No exception was taken to this decision upon the ground that the value was not correctly found by the court, nor is it urged here that the court erred in this respect; but it is claimed that the watches should have been appraised as other property, and that the court could not, without such appraisement, determine their value. The record is not very clear as to the action of the court in this matter, but we think it sufficiently appears therefrom that the court charged the executor with $115, as the value of these watches and chain. The account, as rendered by him, shows the sum of $10,053.74 in his hands; and, in its order settling the account, the court charges him with $10,168.74 in his hands at the date of the filing; and in connection with the finding of the court that, since the rendition of said account, nothing has been received by the executor, it must be held that $115, the differnece between these two sums, is the amount for which the executor was charged as the value of the watches and chain. There was evidence before the court from which it could have found their value; and, in the absence of any assignment of error in this respect, its conclusion must be accepted as correct, whether it be assumed to be $50, as recited in the bill of exceptions, or $115, as appears from a comparison of its order of settlement with the account as rendered. As the executor had disposed of the watches, the court was authorized to take evidence of their value for the purpose of ascertaining the amount with which he should be charged, and was not required to appoint appraisers for that purpose.

3. It is contended by the appellant that the widow was not entitled to the possession of the personal property, in which she was given only a life estate, but that the superior court, instead of distributing the property directly to her during the term of her life, should have

directed that it be converted into money, and invested in some securities from which she should be entitled to receive only the income thereof during her lifetime, and, at her death, the securities should be delivered to the children. In England, and in some jurisdictions within the United States, the administration of an estate is regarded as a continuing trust, and the executor as a trustee for all the parties interested in the estate, for the purpose of carrying into effect the various provisions of the will; and in these jurisdictions the rule prevails that when personal property, consisting of money or securities, is given to one for life, with a remainder to another, the executor, as a trustee for both, shall convert the property into interest bearing securities, and pay the income thereof to the legatee for life, and, after his death, deliver the securities to the remainderman. (Howe v. Earl of Dartmouth, 7 Ves. 137; Howard v. Howard, 16 N. J. Eq. 486; Covenhoven v. Shuler, 2 Paige, 132; 21 Am. Dec. 73.) At an early day in England it was the rule in chancery that the life tenant, before he could demand the delivery to him of property bequeathed to him for life, should give security to the executor; but as early as the time of Lord Talbot, in 1734, this rule had been modified to such an extent as to require the life tenant merely to deliver to the remainderman an inventory that the property was held by him for life only. (Slanning v. Style, 3 P. Wms. 336. See, also, Foley v. Burnell, 1 Brown Ch. 279; Westcott v. Cady, 5 Johns. Ch. 349; 9 Am. Dec. 306.) This rule has been made applicable in this state only to a bequest for life of specific legacies. (Civ. Code, sec. 1365.) If the will is silent concerning the disposition of the corpus of the legacy during the continuance of the life estate, the general rule in equity is that the legatee for life is not entitled to demand from the executor the possession of the legacy, unless he gives security to the executor, and that the remainderman may require that the tenant for life, before receiving the property bequeathed to him, shall give such

security; but, in order that the remainderman may demand that such security be given, he must make it appear that there is some danger that the estate will be impaired or suffer waste if left in the possession of the life tenant. (In re Camp, 126 N. Y. 377; Story's Equity Jurisprudence, sec. 604; Langworthy v. Chadwick, 13 Conn. 42.) The rule is one of equity, established by courts for the protection of the remainderman, in the absence of any direction in the will; but the rule thus established must yield to the terms of the will, and if it appears from a proper construction of the will that it was the intention of the testator that the property should be placed in possession of the life tenant without security, such intention will be carried out. It is to be assumed that the testator intended the life tenant to have the full enjoyment during his lifetime of the property bequeathed to him, and that this enjoyment shall not be impaired, except for the protection of the remainderman. The testator has the right to make the life tenant the trustee of the property bequeathed, without requiring any security from him; and very slight indications in the will will be construed as showing that the testator intended the life tenant, rather than the executor, to be the trustee, subject, of course, to the general rules applicable to the obligation of a trustee to his cestui que trust. If the testator has not required such security to be given by the life tenant, courts are not authorized to require it, in the absence of any showing of danger or liability of waste; otherwise, the will of the testator that the life tenant shall enjoy the property will be frustrated. There is nothing, however, in the rules of procedure in this state, or in the will under consideration, which authorized such a procedure in the distribution of an estate. The administration of an estate in this state is conducted under the direction of the superior court, mainly for the purpose of securing to the creditors payment of their claims, and, after this purpose has been accomplished, in the absence of any express provisions in the will, the estate is to be distributed to the beneficiaries