this latter order an appeal was taken by the administrator of the estate. The respondent now moves to dismiss the appeal upon the ground that it is a non-appealable order.

The constitution has conferred upon the supreme court appellate jurisdiction only in such probate matters "as may be provided by law"; and in section 963 of the Code of Civil Procedure the legislature has enumerated such matters as it has deemed appropriate to have reviewed by the supreme court. An order revoking an order refusing to admit a will to probate is not named in that section, and consequently is not within the appellate jurisdiction of the supreme court. (See Estate of Cahill, 142 Cal. 628, [76 Pac. 383].)

The appeal herein purports to be taken by the administrator of the estate of the above-named decedent, and at the hearing of the motion it was urged on his behalf that, as an order revoking letters of administration is expressly made appealable by section 963, the appeal from that portion of the order should not be dismissed. The bill of exceptions merely refers to the order of November 17th as "denying probate of will and appointing administrator," without setting forth the order at length, and the order from which this appeal is taken is in the following words: "Motion to vacate order refusing probate of will and appointing administrator granted."

Although this is in form a single order, yet, as the order refusing probate of the will and the order appointing appellant as administrator were distinct proceedings before the superior court, this order revoking them must be read distributively and regarded as severally applicable to the former orders. The proceedings for the appointment of an administrator of the estate of a deceased person and for admitting a will to probate are entirely distinct, and are conducted upon different lines of procedure. The appointment of an administrator with the will annexed is to be made in the manner as provided for the granting of letters in cases of intestacy. (Code Civ. Proc., secs. 1350, 1426.) There is nothing in the bill of exceptions which indicates that the appointment of the appellant as administrator of the estate of the deceased did not proceed upon a record separate from that for the probate of the will, or that it was in any respect dependent upon the order denying probate to the will; and as

the order vacating this appointment is appealable the respondent's motion to dismiss the same must be denied.

The appeal from the order vacating the order denying probate to the will is dismissed. The motion to dismiss the appeal from the order vacating the appointment of an administrator is denied.

Hall, J., and Cooper, J., concurred

[No. 35. Third Appellate District.-September 28, 1905.] JOSEPH R. ENSCOE, Respondent, V. JOSEPH H. FLETCHER, Administrator of Estate of W. E. McNeil, Deceased, Appellant.

ESTATES OF DECEASED PERSONS-CLAIM UPON NOTES-ACTION UPON REJECTED CLAIM-SUFFICIENCY OF COMPLAINT.-Although, where a claim against the estate of a deceased person is rejected in whole or in part, a recovery in an action thereon is limited to the items of the claim rejected, yet, where action is upon the identical notes rejected, and additional facts stated in the complaint are merely explanatory of the demand, and no different contract is stated from that set forth in the claim, the cause of action is upon the claim; and the complaint is not rendered objectionable because of the mere segregation and lumping of certain classes of items not affecting their amount.

ID.-DEATH OF PAYEE-DISTRIBUTION OF NOTES TO JOINT MAKER AS HEIR CLAIM AGAINST CO-MAKER-CONTRIBUTION NOT INVOLVED.— Where the notes sought to be enforced were never paid to the original payee, and after his death were distributed to one joint maker as heir of the payee, the only effect of such distribution was merely to extinguish the equitable share of the liability of such joint maker, and he is entitled by succession to the rights of the payee, by operation of law, to enforce one-half of the liability upon the notes as a claim against the estate of the deceased co-maker. No claim for contribution is involved in such case.

APPEAL from a judgment of the Superior Court of Plumas County. C. E. McLaughlin, Judge.

The facts are stated in the opinion of the court.

J. D. Goodwin, and U. S. Webb, for Appellant.

L. N. Peter, and Solinsky & Wehe, for Respondent.

BUCKLES, J.-This is an action on a claim presented to the administrator of the estate of W. E. McNeil, deceased, which claim was allowed in part and rejected in part,-allowed for $145.92 and rejected for $3,437.50. The claim consisted of the amount due on four promissory notes, which were set forth in full in the claim, with interest thereon, and other items. The disallowance was mainly on the notes. A copy of the claim is contained in the complaint. These notes were all made at the same time, to wit, February 1, 1891, and for one thousand dollars each, and were payable on February 1, 1898, February 1, 1899, February 1, 1900, and February 1, 1901. The notes are joint notes, one J. Enscoe being the payee and J. R. Enscoe and W. E. McNeil being the joint makers. The claim does not set forth the relationship of J. Enscoe, the payee, and J. R. Enscoe, the joint payor, nor does it state how J. R. Enscoe became the holder or owner of said notes, nor what right he had to ask payment to himself of one half of said notes further than whatever presumptions might arise from the facts that he was in possession of the notes and that he was a joint maker. The complaint shows that the payee, the said J. Enscoe, was the father of J. R. Enscoe, and died October 19, 1894; that his estate was probated, and that on May 19, 1898, the superior court by its decree and judgment distributed the said notes to the said J. R. Enscoe, as the heir at law of the said J. Enscoe; that on November 30, 1901, the other joint maker of the said notes, W. E. McNeil, died, and the defendant, Joseph Fletcher, became the administrator. The answer alleges payment of said notes by J. R. Enscoe, May 19, 1898, the date of the decree distributing the notes to him, and that the obligation on the notes being extinguished plaintiff became entitled to contribution from said W. E. McNeil, and that such right of action accrued to plaintiff; and that more than two years had elapsed since such right accrued and before McNeil's death, and that it is therefore barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure.

Judgment was for plaintiff, the court finding the estate of W. E. McNeil to be liable for one half the principal and interest due on said notes, to wit, the sum of $3,320,-and that other items of said claim amounting to $220.42 were also

a charge against said estate, and rendered judgment for the sum of $3,540.42. The judgment was made up of the following items: Notes, $3,320; amount allowed on the claim, $145.92; and for insurance the sum of $74.50.

The appeal is from the judgment.

Appellant contends that the claim as presented to the administrator cannot be reconciled with the complaint, in this, that the demand is not the same in the complaint as made in the claim. In an action upon a claim presented and rejected in an estate of a deceased person, no recovery can be had for anything outside of the items of the claim itself,-that is to say, the recovery must be upon the same cause of action as set up in the claim. (Lichtenberg v. McGlynn, 105 Cal. 45, [38 Pac. 541].) A claimant cannot come into court and allege and prove any other or different contract or cause of action from that stated in his claim. In Etchas v. Orena, 127 Cal. 590, [60 Pac. 45], the claim presented was for services rendered the deceased for six months in each year at thirty dollars per month, and during the other six months at the rate of five dollars per month, the claim amounting to twenty-one hundred dollars. A payment of nine hundred dollars having been made, there was a balance of twelve hundred dollars still due. The complaint alleged that deceased promised plaintiff and agreed to pay her the reasonable value. of her services by making provision in her will for plaintiff for a sum equal to the value of the said services, and in consideration of such promise plaintiff rendered the services. The items were the same in amount in both claim and complaint, but the contract under which the services were rendered being different from the contract stated in the claim, the court there held that no recovery could be had. (Gallagher v. McGraw, 132 Cal. 601, [64 Pac. 1080].)

In the case before us the complaint sets forth the identical notes on which the claim is based and which are also set out in full in the claim. The claim shows upon its face that plaintiff seeks to recover only one half the amount of principal and interest due on the said notes of which he is joint maker; it also appears on the face of the notes that the other of the joint makers bears the same name as did the deceased against whose estate the claim was presented,—to wit, W. E. McNeil. The complaint sets forth more facts in relation to

the notes than does the claim, but the cause of action is not changed. The demand in the claim was for payment of the one half of the notes just as he had obligated himself to do in his lifetime and the complaint is for exactly the same thing. There is therefore no difference in the demands, and all the additional facts stated in the complaint are but explanatory of the demand and neither add to nor take away a single thing. Both demands are identical in every respect, and it seems to us that is all that is required under section 1500 of the Code of Civil Procedure, and the authorities cited by the appellant, to wit: Lichtenberg v. McGlynn, 105 Cal. 45, [38 Pac. 541]; Barthe v. Rodgers, 127 Cal. 54, [59 Pac. 310]; McGrath v. Carroll, 110 Cal. 88, [42 Pac. 466]; Etchas v. Orena, 127 Cal. 590, [60 Pac. 45]; Gallagher v. McGraw, 132 Cal. 601, [64 Pac. 1080]; Morehouse v. Morehouse, 140 Cal. 88, [73 Pac. 738].

The fact that plaintiff in his complaint has segregated and lumped certain classes of items of the claim without increasing or diminishing the amount of any item and without alleging any different contract as to liability on any such items than appears on the face of the claim seems to us to be without reason for objection.

We now come to consider what seems to be the real point in the case, and the one to which appellant has directed the greater part of his argument; that the notes were paid when distributed to plaintiff and the obligation extinguished, and that the only claim J. R. Enscoe could have made was one of contribution, and that such a claim would be barred by the statute of limitations. It is clear the notes were never paid to the original payee, J. Enscoe, for he died while he was yet the owner and holder of the notes, and prior to May 19, 1898, the date at which appellant contends the payment was made. There can be no dispute as to the rule that where two or more persons are jointly liable on an obligation and one of them makes payment of the whole, that obligation is thereby extinguished, and the one paying has a new obligation against the others for their proportion of what he paid for them. If these notes were paid and the obligation extinguished, it is solely by operation of law and brought about by the death of the payee and the distribution of his estate, including the notes, to his heir who was a joint maker of the notes. And