200 P. 508 | Cal. Ct. App. | 1921
Certain of the heirs and devisees of Rebecca Schaeffer, deceased, and the administratrix, appeal on a question of law alone, from the order and decree settling the final account of the administratrix, and decreeing distribution of the residue of the estate. The respondent makes a preliminary objection and seeks a dismissal in the absence of a printed record.
[1] The appeal is prosecuted under the alternative method. The transcript, prepared in the manner prescribed by section 953a of the Code of Civil Procedure, is properly authenticated by the clerk. It includes, among other papers, the verified final account, report, and petition for distribution, the written opposition and exceptions thereto, the order and decree settling the account, and directing distribution, which sets out the findings of the court upon the *494
matter in controversy. It was not necessary that the record be printed. The enumerated papers, constituting the ordinary judgment-roll (Estate of Gamble,
Rebecca Schaeffer died testate, leaving four children, who were made devisees under the will. When the estate was in condition to be closed, the administratrix with the will annexed filed the final account and report of her administration, together with a petition for final distribution. As shown by the account, the property to be distributed consisted of quite a large amount of cash, one United States Liberty Bond, two notes and mortgages, and a claim against Henry C. Schaeffer, this respondent, for $790, alleged to be due for rent. One of the notes secured by mortgage also represented an indebtedness of the respondent. In the petition for distribution the administratrix asked that the total indebtedness of said Henry C. Schaeffer, including the claim for rent, be offset against and deducted from his distributive share of the estate, which was somewhat in excess of the estate's demand against him. The respondent filed written objections and exceptions to the account and petition for distribution, in which he denied that the sum of $790, or any amount, was due from him to the estate for rent, and interposed the bar of the statute of limitations against the claim. He resisted the prayer for a deduction of that amount from his distributive share of the estate.
At the hearing it was stipulated, and the decree settling the final account and of distribution recites, that in 1912 the respondent was indebted to Rebecca Schaeffer, the deceased, in the sum of $790 for rent; that the indebtedness has never been paid; that a written acknowledgment or promise to pay the same has never been given; and that *495 the indebtedness was barred by the statute of limitations at the time Rebecca Schaeffer executed her will, and at the time of her death. The lower court sustained the position of the respondent. It distributed the assets of the estate to the persons entitled, but refused to deduct the indebtedness for rent from respondent's distributive share. It is from that portion of the order and decree that this appeal is prosecuted, presenting for our consideration, as the single question of law, the effect of the bar of the statute of limitations upon the right of the court, sitting in probate, to deduct an indebtedness from the distributive share of the debtor in his ancestor's estate.
[2] It is, of course, the well-settled general rule, with certain exceptions, that when the residue of the estate consists of money, a debt due from a distributee to an estate, and forming a part of the assets of the estate, may be properly set off against the distributive share due such debtor, whenever it can be done without injustice to the parties. (Estate of Gamble,
The decree is affirmed.
Richards, J., and Kerrigan, J., concurred. *497