125 Cal. 603 | Cal. | 1899
Appeal from order allowing final account of administrator. Deceased died October 20, 1889, leaving personal property which sold at public sale for $681.79, and ten acres of land upon which there was a mortgage for $5,500. Claims were presented and allowed against said estate amounting to over $1,000. The administrator filed his final account in 1897, to which many objections and exceptions were made by the appellants, but two of which are urged upon this appeal.
1. It is first claimed that the court erred in not charging the
It is not claimed that the administrator did not have the authority to redeem the horses, neither is it claimed that there was not a valid lien upon them. The specification is for gross mismanagement of the estate in selling the horses for less than the amount paid out for redemption, but no proof is before us of any want of good faith in the transaction. The act might have been for the benefit of the estate, and as there is no proof of negligence or want of ordinary care, and the proof shows that the administrator acted in good faith, we must hold that if his acts could under any state of facts be sustained as valid they must be presumed to be valid under such state of facts rather than to be held invalid from the mere fact that the property did not sell for enough to repay the amount paid out by the administrator. (Burnett v. Lyford, 93 Cal. 119.)
We do not lay down the rule that an administrator can, of his
2. The holder of the mortgage which was executed by the deceased in her lifetime brought suit against the administrator for the foreclosure of the same, and in the decree were included the sums of $571.12 for taxes and interest thereon, and $2,643.88 interest on the promissory note.
It is claimed that in the complaint on foreclosure there was no allegation of payment of taxes, and that the administrator and his counsel, notwithstanding this fact, consented to the taxes being included in the decree. The mortgage provided that in case of foreclosure the mortgagee should be entitled to include in the decree all taxes paid out upon the property. The bill of exceptions shows that proof was made of the amount of taxes so paid, and that the attorneys for the administrator found the same to be correct. It therefore appears that the foreclosure case was tried upon the theory that the complaint contained the necessary allegation as to taxes, and it is too late now to raise the objection for the first time. As the objection, if raised, would have been merely technical, and as the bill of exceptions shows that the taxes were properly included according to the mortgage and the proof, we cannot now say it was negligence in the administrator not to object to the proof of the payment of the taxes because the complaint did not allege such payment. We must presume in support of the judgment that the matter was heard and determined in the lower- court -upon the theory that the complaint was sufficient and the issue properly before the court. (Lawrence Nat. Bank v. Kowalsky, 105 Cal. 43.)
It is claimed that the amount of interest in the decree was
The decree was offered in evidence by appellants. It showed that plaintiff, in open court, waived all claim for attorney’s fees and all claim to a deficiency judgment. That the court heard evidence and determined that there was due for principal and interest the sum of $8,715 and $11.45 costs. The evidence introduced in this record shows that the amount named in the decree was correct. It is not claimed that the property was ever redeemed or that the administrator ever received any money from it in any way. It is not claimed that he acted fraudulently or corruptly. Another answer to the contention as to the interest and taxes amounting to $980.53 is that appellants are not in a position to complain. If the full amount claimed should be charged to the administrator, there would then not be sufficient on hand to pay the creditors, and appellants would not be entitled to anything. The proof shows that after the foreclosure sale the administrator made arrangements with the plaintiff in the suit, who was the purchaser at the sale, that if he could find a purchaser for the land she would deduct one thousand dollars from the amount due her. That the administrator tried to find such purchaser but could not, and the plaintiff, who purchased the property at foreclosure sale, finally sold it for less than the amount due her. Finally, it is claimed that the administrator did not make any appraisement of the property, and was guilty
We advise that the order be affirmed.
Chipman, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the order is affirmed. Harrison, J., Garoutte, J., Van Dyke, J.