| Cal. | Jul 1, 1856
Mr. Justice Heydenfeldt concurred.
The 136th section of the Act to regulate the estates of deceased persons, page 396 Compiled Laws, provides that “ no holder of any claim against an estate shall maintain any action thereon, unless the claim shall have been first presented to the executor or administrator.” It is
If the claim is allowed, it shall be paid in the due order of administration, and if rejected, the party may bring his action within three months thereafter, and if he recover judgment, the same shall be paid in like manner as if the claim had been allowed.
There is no exception to the rule, other than in the case of a judgment, execution and levy, in the lifetime of the deceased.
The word “ claim,” employed by the statute, is sufficiently comprehensive to include every species of charge or account against an estate, whether the same be recorded or not. Numerous decisions have been cited from other States upon statutes similar to our own, which are not altogether uniform, the doctrine being differently established in different Courts.
To our mind, the statute of this State is too plain to admit of any doubt, or require a resort to other decisions for a rule of construction. The intention of the Legislature was undoubtedly to protect the estates of deceased- persons from harassing and expensive litigation, until such a period as the administrator or executor could secure the assets for the purpose of liquidating the claims, and this intention could only be carried out by applying the rule to all demands or claims whatever.
If the Legislature had intended to dispense with notice and a demand, in the case of mortgages and liens of record, it appears to us that the party suing would have been allowed the fruits of his judgment by execution and sale, instead of which he is denied the right to sue out an execution. If suits of this kind are to be maintained, creditors of recorded claims may waste an estate by the costs of litigation to the prejudice of those holding claims of inferior dignity. Besides, they will escape the necessity of informing the administrator or executor, of any payment on, or set off to, their demands, as provided by the statute.
We see no hardship in the rule when it is understood, and we think that an adherence to it will prove extremely beneficial, as it will serve to protect the property of deceased persons, and thereby secure a larger fund for the satisfaction of all the creditors.
Upon the question whether this point should have been taken advantage of, by answer or demurrer, we are satisfied that the demurrer was properly interposed. The non-presentation was not a matter of avoidance, only to be taken advantage of by plea. The general right to sue an administrator was taken away by the statute, except in case of presentation and rejection of the account, and the declaration should have set out the exception.
The objection that the demurrer does not “ distinctly specify the grounds on which the objections to the complaint are taken,” would perhaps be maintained were it not for the fact that the Courts of this State, following the analogies of the New York Code, have adopted the construction of her Courts upon this subject, and maintained the sufficiency of such a demurrer.
Judgment affirmed.