244 P. 340 | Cal. | 1926
This appeal is from an order made and entered by the probate court settling and allowing the first account and report of the administrator in the above-entitled proceedings, against the objections of appellant, a creditor, whose claim had been approved and allowed for the sum of $3,376.62 by the judge of said court.
Said account included the allowance of a credit in favor of the administrator covering a loss sustained as the result of the administrator carrying out to completion two building and construction contracts, one of which was entered into by the intestate with the Odd Fellows' Association of Los Banos, and the other was made with the city of Los Banos.
The intestate, a contractor and builder, had commenced to perform both of said contracts, and while so engaged died, and his administrator completed the performance of the covenants of the said intestate's contracts at a loss. While the work commenced by the intestate had not greatly advanced at the time of his death, it had, nevertheless, progressed to a somewhat substantial stage. The foundations were laid and the preliminary work had been completed in both instances and considerable material, steel and timbers, had been cut and placed in preparation for the erection of the superstructure. Contracts for material had been entered into by the intestate. No complaint is made that the administrator, in completing the contracts of his intestate, was guilty of fraud or mismanagement, or that the cost of completing said work of construction was greater than it should have been. Objection is made, however, to his undertaking the completion of said unfinished construction in the circumstances of the situation. There would have remained sufficient assets in the hands of the administrator to have discharged said creditor's claim had not the loss been sustained in the manner above related. No objection appears to have been made by the creditor to the completion of said work at any time during its progress.
The probate court, in its order settling said account, made the following finding:
"The court finds that the administrator carried out and completed two building and construction contracts entered *166 into by deceased in his lifetime, but uncompleted at the time of his death; that said contracts did not require the personal skill of the deceased in their carrying out and completion; that in the carrying out and completion of the same a loss of $6,894.17 was suffered and sustained; that said loss is a charge against the estate, and chargeable against the estate, as part of the cost of administration and should be allowed."
This court is bound by the finding of the trial court on a question of fact, if the finding is supported by any substantial evidence. Appellant has not pointed out wherein the above finding is not sufficiently supported, but we have, nevertheless, examined the record and find there is sufficient evidence to support it.
The law is well settled in this state by numerous authorities that if an administrator or executor, without being authorized to do so, elects or undertakes to carry on the business in which the deceased was engaged, he does so at his peril. (Estate of Knight,
In the instant case, the decedent had entered into a contract binding himself and his personal representative to perform the covenants which were subsequently performed by the administrator. There is no evidence before us to sustain the conclusion, and we are not permitted to assume as a fact proved that the intestate would have performed his contract more profitably to himself than it was performed for his estate by his administrator. The solvency or insolvency of himself or his estate depended upon the wisdom or lack of wisdom evidenced by the execution of his contract as tested by the final result. We cannot say, therefore, that, had he lived, he would have been better able to pay his obligation to appellant than was his administrator. The foregoing obligations were created by his own hand and act and were not new obligations incurred by the contracts of his administrator. The parties with whom the contracts were made were entitled to have them respected, and there is no evidence or suggestion that performance was waived by them. Whether it would have been to the interest of the estate, and the creditor as well, for the administrator to have refused to perform, on the theory that any damages recovered against the estate for a breach would have been smaller than the loss suffered by performance, was at best a question addressed to the judgment of the probate judge.
The general rule is that it is the duty of an administrator to perform the contracts of his intestate unless the acts to be performed are personal, such as an author to compose a particular work, an artist to paint a particular painting, a sculptor to produce a particular piece of statuary or other work of art, or a lawyer or physician to render services. Contracts to perform such personal acts are discharged by death or by the disability of the person who was to perform said acts. This rule, however, does not apply where the services are of such a character that they may be as well performed by others (Janin
v. Browne,
The rule as stated by 24 Corpus Juris, 53, 54, and which is approved by the weight of judicial authority, and text-writers, is that "executors or administrators are generally bound by all the covenants or contractual obligations of their decedents, except such as are personal in their nature and of which personal performance by the decedent is of the essence, or such as are terminated by decedent's death, even though performance is detrimental to the estate; and where the personal representative neglects or refuses to carry out the contract of his decedent, the other party has the usual remedies, as in electing to treat it as rescinded and claiming damages." The rule has been thus stated by this court: "`Where the contract of the deceased is of an executory nature, and the personal representative can fairly and sufficiently execute all the deceased could have done, he may do so and enforce the contract.' (Parsons on Contracts, sec. 131.) E converso, the personal representative is bound to complete such a contract, and, if he does not, may be made to pay damages out of the assets. (Siboni v. Kirkman, 1 Mees. W. 418.)" (Janin v. Brown, supra; see, also, McCann v.Pennie, supra; Quick v. Ludbarrow, 3 Bulstrade Rep. 30;Hawkins v. Ball's Adm., 18 B. Mon. (Ky.) 816; Halyburton v.Kershaw as Adm., etc., 3 Desau. (S.C.) 105; Billing's Appeal,
Appellant chiefly relies upon Exchange National Bank v.Estate of Betts,
It is a fact that the administrator herein acted without having first submitted the question of the completion of the contracts to the judgment of the probate court. In some jurisdictions such a failure on his part would be regarded as a sufficient reason for the disallowance of an expenditure of the estate's funds. But this court has not gone to the extent that some jurisdictions have gone and made the procurement of the permission of the court absolutely essential to the allowance of an expenditure made by the administrator. In In re Clos,
In view of our decision on the main question it becomes unnecessary to pass upon the other questions raised by appellant, *170 for the reason that they are included within and are subsidiary to the main question decided.
The order appealed from is affirmed.
Richards, J., Waste, C.J., Shenk, J., Curtis, J., Lawlor, J., and Lennon, J., concurred.