152 P. 728 | Cal. | 1915
These two actions, which are substantially identical, were brought by the mother and the sister respectively of E.O. Miller, deceased. The actions were based upon the rejection of claims against the estate of said E.O. Miller. In each case the court sustained a demurrer to the complaint without leave to amend and the appeals are from the judgments of dismissal which followed.
The facts set forth in the complaints are substantially as follows:
E.O. Miller and his two brothers signed a writing by which each agreed to deposit $480 in a certain bank on October 15th of each year. From the fund so created Elizabeth N. Miller was to draw seventy dollars and L. Agnes Miller fifty dollars on the first of each month. The closing paragraph of the written instrument was as follows:
"We consider this agreement binding upon us while living and chargeable against our several estates in case we should predecease said or either of said beneficiaries."
During the lifetime of E.O. Miller the payments were regularly made as contemplated by the agreement and after his death one payment was made on behalf of his estate. Before the 15th of the following October the plaintiffs in these actions filed claims against E.O. Miller's estate. The said claims were for "moneys to become due and payable" each year, on October 15th, "as per the attached agreement," which was fully set forth. The claim was rejected by the executrix and the executor of E.O. Miller's estate and suit was instituted to establish the right of each plaintiff to the allowance of her demand as a contingent claim against the said estate.
Respondents urge two principal points in support of the court's ruling. They assert that the action was prematurely brought and that the writing being testamentary in character and not executed with the necessary forms prescribed for the execution of wills, no rights against the estate of E.O. Miller were created.
Respondent's position respecting the first contention is sustained by the code and the authorities. It is provided by section 1498 of the Code of Civil Procedure that an action upon a rejected claim must be commenced within two months after it becomes due, and these actions were instituted before the 15th of the October, upon which the next installment was payable under the terms of the instrument. This section has *271
been interpreted in Morse v. Steele,
Appellants assert that the statute and the authorities cited above do not apply to the facts of these cases at bar, and that the opinions in the cases upon which respondents rely are at variance with the provisions of section 1648, Code of Civil Procedure. That section, so far as invoked by plaintiffs, is as follows: "If there is any claim not due, or any contingent or disputed claim against the estate, the amount thereof, or such part of the same as the holder would be entitled to if the claim were due, established, or absolute, must be paid into the court, and there remain, to be paid over to the party when he becomes entitled thereto; or, if he fails to establish his claim, to be paid over or distributed as the circumstances of the estate require. If any creditor whose claim has been allowed, but is not yet due, appears and assents to a deduction therefrom of the legal interest for the time the claim has yet to run, he is entitled to be paid accordingly."
The claim of each plaintiff was of such nature that the court could not by any possibility determine what it would be in, amount if established or absolute. If Mrs. Miller and her daughter both should have died before the next installment of money should have been due under the agreement, nothing would ever have been payable by the estate in any view of the contract and the obligations or alleged obligations created by it. Therefore no duty of the executrix and the executor or the court to set aside a fund for the payment of the annuities to the plaintiffs was created. A court may not, under this section (1648, Code Civ. Proc.), ascertain the probable deficiency upon the foreclosure of a mortgage against land belonging to the estate and create a fund for the payment of such deficiency (Estate of McDougald,
The judgments are affirmed.
Henshaw, J., and Angellotti, C. J., concurred.
Hearing in Bank denied.