¶1Mrs. Ellen Casey, the petitioner, is in possession of a sum of money which the executor of a certain Mrs. Zephyr claimed as belonging to the estate of his decedent. After an examination under the statute (Code Civ. Proe., secs. 1459-1461), Mrs. Casey was cited to show cause why she should not be punished for a contempt of the Probate Court, in not obeying its order commanding her to deposit the money in a bank, subject to that tribunal’s order.
¶2She appeared, claimed that the money had been given to her by Mrs. Zephyr before the latter’s death, and introduced evidence tending to establish her own title to it. The court heard testimony in favor of and controverting her right to the money, and then made its order, committing her for contempt in refusing to deposit it in a bank. The petitioner has sued out a writ of habeas corpus for the purpose of regaining her liberty.
¶3According to the evidence adduced in this proceeding, the petitioner was either the owner by gift from Mrs. Zephyr of the money in controversy, or she had em*270bezzled it after the latter had intrusted it to her to be deposited in bank.
¶4The dispute between Mrs. Casey and the executor necessarily involved the title to that money. And the question for determination is, whether or not the Probate Court had the right, upon such a summary proceeding as that taken here, to order Mrs. Casey to be committed for contempt in failing to obey its order, which involved the transfer of the property which she claimed and asserted title to, into the custody of a bank of the court’s choosing.
¶5If the evidence had shown that Mrs. Casey claimed no title to the money in dispute, but admitted it to be the decedent’s property at her death, the question presented would be different. But here the claim is made, and supported by some evidence at least, although there is a sharp and decided conflict about it, that the money which the executor claims as assets of the decedent’s estate was given to Mrs. Casey, and was in her possession as her property before the decedent’s death. It necessarily follows, then, that in order to convict Mrs. Casey for contempt in not obeying the order of the Probate Court, that tribunal must have decided that the title to this property was not in her. Can such an issue, vital to the exercise of the court’s power, be legally determined in such a proceeding ?
¶6The question, it seems to us, is very clearly answered by this court as follows: —
¶7“The title upon which his adverse claim was founded may be invalid. It may have been obtained by fraudulent and corrupt practices. It is a principle which underlies all institutions and forms of government, that no man can be deprived of his property, except in proceedings according to law, unless it be confiscated for the necessities or good of the public. If his title is claimed to be invalid or fraudulent and void, he is entitled to be heard according to the forms of law. Pro*271ceedings to punish him for contempt for not delivering it up without a trial according to law, to another who claims it, are not the appropriate proceedings for the trial of an issue of title. The issue as to such title should be tried in an appropriate action, in which the verdict of a jury or the findings of the court may be had upon issues properly framed for the purpose of definitely determining the question of title.” (Ex parte Hollis, 59 Cal. 406-413.)
¶8“ Proceedings to punish a party for contempt are not the appropriate proceedings for the trial of the issue of title.” (Larrabee v. Selby, 52 Cal. 506-508.)
¶9It is true that in the present case the order of the court did not command the petitioner to pay over the money to the executor. But it did command her to deposit what she claimed was her money in a bank, subject to the further order of that tribunal.
¶10To give the right to the court to make such an order, it must first have determined that she had no title to it, for if otherwise, and her right was not determined or considered, she being in possession of the money, claiming it as her own, then that tribunal had no legal authority to make any such órder. And therefore the question of title must necessarily have been passed upon.
¶11Sections 1459,1460, and 1461 of the Code of Civil Procedure, portions of the statute appertaining to probate proceedings, provide, it is true, for the citation and examination of parties alleged to have in their possession property belonging to an estate, but they do not declare that the court may, after such an examination, when the title to the property is in dispute, order such effects to be delivered up to the executor or administrator, or deposited where the court may order; and if such had been the legislative intention, it was easy to have asserted it in apt language
¶12Section 572 of the Code of Civil Procedure refers to property which is without question in the hands of a *272trustee as trust property, or which belongs to or is due to another; it does not refer to that where the party alleged to hold as a trustee claims title to it in his own right.
¶13We fail to find anywhere in our constitution or statutes any language which gives to a Superior Court, in a summary proceeding of the kind invoked here, the right to adjudicate the title to property.
¶14For these reasons, the petitioner should be discharged from custody-.
¶15Searls, C., and Belcher, C. C., concurred.
¶16For the-reasons given in the foregoing opinion, the petitioner is discharged.