92 Cal. 433 | Cal. | 1891
There are two appeals in this case, one from an order settling the executor’s first account, and the other from an order of partial distribution. Both orders were based upon the same facts, and involved the same questions of law; the two appeals may therefore be considered together.
On January 10,1889, William C. Hildebrandt was appointed executor of the last will of Louis G. C. Hildebrandt, deceased, and letters testamentary were issued to him. On the 23d of the same month, notice requiring the creditors of the decedent to present their claims to the executor within a time named was published, as provided by law and ordered by the court. On August 15, 1889, the executor filed in court a verified inventory
In June, 1890, the executor filed in court his first annual account, which was, in substance, as follows:—
“William C. Hildebrandt, Executor, in Account with the Estate of Louis Gr. C. Hildebrandt, Deceased.
“To cash received, as follows, to wit: —
Due from William C. Hildebrandt . . . $11,429 43
Less offset claimed by Wm. C. Hildebrandt . 10,000 00
$1,429 43
Trunk containing, etc., appraised at . . . 20 00
$1,449 43
Contra, various sums paid out as expenses of administration......... 80 42
Balance.............$1,369 01”
Several of the legatees and heirs of the decedent filed objections to the allowance of the alleged offset, upon the ground that no claim for the same had ever been presented, and the time for presentation of claims against the estate had long since expired.
When the matter of the settlement of the account came on to be heard, the executor was called as a witness, and testified “that the account, as filed, was correct,” but he “admitted that no claim whatever, as prescribed by statute, had been presented to the judge by him.” Thereupon the court refused to hear further evidence, and entered an order sustaining the objections, and disallowing the alleged offset of ten thousand dollars. To this order an exception was reserved by the executor.
In support of the appeals, it is contended that the first order was erroneous, because the court should have heard testimony as to whether the alleged offset was a just demand against the estate, and if found to be so, should have allowed it, notwithstanding no claim therefor had been presented; and that the second order was erroneous, because if the offset had been allowed, as it should have been, then the petitioner would not have been entitled, under the will, to so large a sum as was distributed to her.
The Code of Civil Procedure provides as follows:—
“ Sec. 1493. All claims arising upon contracts, whether the same be due, not due, or contingent, must be presented within the time limited in the notice, and any claim not so presented is barred forever,” etc.
“Sec. 1494. Every claim which is due, when presented to the executor or administrator, must be sup*436 ported by the affidavit of the claimant, or some one in his behalf, that the amount is justly due, that no payments have been made thereon which are not credited, and that there are no offsets to the same, to the knowledge of the affiant,” etc.
“Sec. 1510. If the executor or administrator is a creditor of the decedent, his claim, duly authenticated by affidavit, must be presented for allowance or rejection to a judge of the superior court, and its allowance by the judge is sufficient evidence of its correctness, and must be paid as other claims in due course of administration,” etc.
It is urged that these sections do not apply to and cannot affect this case, for the reason that as the executor had in his hands more money belonging to the estate than the amount of his claim, he could not have made the affidavit “that there are no offsets to the same, to the knowledge of affiant,” and hence that he was entitled to have his claim allowed without presentation.
This position cannot, in our opinion, be maintained. The statute is imperative, and applies to all claims arising upon contracts. If the effect of it is to cause a loss or work a wrong in some particular case, that is a matter for the consideration of the legislature, and not the courts. We are unable to see, however, how the loss sustained by appellant can have resulted from his inability to .comply with the requirements of the law. It would seem rather to have resulted from his own carelessness and neglect. The money which he had received as executor he held in his official capacity, while the debt was due to him, if at all, in his individual capacity. The money of the estate was not an offset, in any sense, to his private claim, and the fact that he held that money in no way prevented his making the affidavit required.
We advise that the orders appealed from be affirmed.
Vang lief, 0., and Fitzgerald, 0., concurred.
For the reasons given in the foregoing opinion, the orders appealed from are affirmed.