46 Cal. 304 | Cal. | 1873
In respect to the Everett street lot, the order of sale must be affirmed. The appellant claims no interest therein, and the owner who has succeeded to the title of the sole devisee having expressly consented to the order of sale, it does not concern the appellant whether it is erroneous or otherwise. Nor is it clear that he is entitled to be heard in respect to the Minna street lot, so long as he holds the possession of it adversely to the administrator, and refuses to account for the rents and profits. But waiving this question, we deem it best to dispose of the appeal on its merits.
Without entering into a critical analysis of the petition for the order of sale, it will suffice to say, that we think it states all the necessary jurisdictional facts, and is otherwise sufficient. At the hearing of the petition, an objection was made to the introduction in evidence of the judgments in the cases of Nolting and Schroeder against the administrator, on the ground that transcripts of the judgments had not been filed in the Probate Court within thirty days after they were rendered. But section one hundred and forty of the Probate Act only requires that “ a certified transcript of the judgment shall be filed in the Probate Court,” and is silent as to the time within which it shall be filed. It is true, sec
Another point made by the appellant is, that when the judgments were offered in evidence they had already been barred by the Statute of Limitations, and were no longer valid claims against the estate. Section fourteen of the Probate Act provides that “the effect of any judgment rendered against any executor or administrator, upon any claim for money against the estate of his testator or intestate, shall be only to establish the claim in the same manner as if it had been allowed by the executor or administrator and the Probate Judge; and the judgment shall be that the executor or administrator pay in due course of administration the amount ascertained to be due.” The question then is, whether the Statute of Limitations runs against a claim from the time it is allowed, pending an open and unsettled administration. In Beckett v. Selover, 7 Cal. 229, referring
The point chiefly relied upon by the appellant is, that there was no extraneous proof to support the judgments of Nolting and Schroeder, which, it is claimed, were not even prima facie evidence of indebtedness as against the devisee. It must be conceded that a judgment against the administrator stands upon no better footing than a claim duly allowed by the administrator and the Court. Section one hundred and forty of the Probate Act so expressly declares, and it results that the same rule must be applied to both. In Beckett v. Selover, 7 Cal. 215, on an application by a creditor for the sale of real estate for the payment of debts, the widow and heirs resisted the application, and denied the existence of the debts. At the trial, the petitioner put in evidence a judgment against the administrator, and also a
We are not aware that this ruling has been modified by any subsequent decision of this Court. But, in the case now under consideration, there was no offer by the contestant to show affirmatively that the judgments of Nolting and Schroeder were unjust, and not a proper charge against the estate; and the point raised here is, that as against the devisee or her grantee, the judgments are not even prima facie evidence of indebtedness. But the proposition is not tenable. There are very satisfactory reasons for holding that in a proceeding for a sale of the property of the heir, for the payment of debts alleged to exist against the estate, he should not be concluded from showing that the pretended debts are unjust, and are not valid claims against the estate. At common law, the real estate went directly to the heir, and the administrator had no control over it, for the payment of debts. If the creditors pursued it in the hands of the heir, it was incumbent on them to establish affirmatively the validity of their demands, and a judgment against the administrator was not prima facie evidence. In Kentucky, however, where the common law system prevails, the Court of Appeals of that State, in a late case, decided that in an action against the heir, a judgment against the administrator was prima facie evidence of the debt. (Hopkins v. Stout, 6 Bush. 381.) But, however the rule may be at common law, there can be no doubt that, under our system, where the real estate is a fund in the hands of the adminis
This is an adjudication directly upon the point in issue here, and the reasoning by which it is supported commends itself to our judgment. We are, therefore, of opinion that the judgments, without other proof, were prima facie evidence of the indebtedness.
The objection that there was an unreasonable delay in ap
Order affirmed.
Hr. Chief Justice Wallace did not express an opinion.