Pitte v. Shipley
46 Cal. 154
Cal.
1873
Check Treatment
By the Court, Niles, J:

Neither the promissory note, nor the mortgage given to secure it, was formally presented to the executrix or Probate Judge for allowance within ten months after the publication of notice to creditors. The note was made by the decedent alone, and the land mortgaged by him to secure its payment was a part of his general estate. The question is presented as to the effect of this failure to present the claim upon the rights of the plaintiff, who now seeks merely to foreclose his mortgage, but prefers no claim against the estate for any deficiency.

No case exactly like this has hitherto been before the Court, although the several sections of the Probate Act, upon which its determination depends, have been considered and construed in cases somewhat similar.

In Fallon v. Butler, 21 Cal. 32, the promissory note had been presented and allowed as a claim against the estate, and the question was, whether the lien of the mortgage could be enforced in equity, notwithstanding such allowance, or must be enforced in the Probate Court by an executor’s sale of the mortgaged premises and appropriation of the proceeds to the payment of the secured debt. While it was held that the District Court had jurisdiction of the foreclosure proceedings, it was said that the presentation and allowance of the note “were necessary to secure the payment of the debt out of the general estate, if that were de*159sired, and perhaps, also, to prevent the debt from being barred by the statute, and thus to uphold the mortgage.”

In Christy v. Dana, 34 Cal. 553, the plaintiff sought to foreclose a mortgage upon property which had been conveyed by the decedent, prior to his death, to the defendant. The failure to present the claim for allowance to the administratrix was urged as a bar to the plaintiff’s recovery. It was held that such presentation was unnecessary, inasmuch as no relief was demanded against the estate, “and the intestate, at the time of his death, had no interest in the land.”

In Sichel v. Carillo, 42 Cal. 505, the mortgage in suit was executed by the wife of one John Rains, upon her separate property, to secure the payment of her husband’s individual note. The note was not presented to the administrator of Bains within ten months after publication of notice to creditors, and the widow defended the suit to foreclose the mortgage upon this ground. The Court held that while the action against Bains was barred by the failure to present the claim, the right of action upon the mortgage survived. But this decision was placed upon the ground that the mortgage was not the contract of Bains, nor was the mortgaged property a portion of his estate. Only the remedy upon the note was barred by failure of presentation; but the debt itself was not paid, satisfied, discharged, or in any way extinguished, and the defendant’s land remained subject to the lien created by her own contract for its payment. But the question now presented was expressly reserved in the following terms : “It may be that when the personal liability is against the estate, and the mortgaged property belongs to the estate, so that, in any event, the debt would have to be satisfied out of the estate, it would be necessary to present the claim to prevent a bar, and keep the remedy alive as to the debt, in order to uphold the remedy on the mortgage.”

The doctrine of this case was applied in the case of Schadt *160v. Heppe, 45 Cal. p. 433, in which a decree of foreclosure was sustained against property which had been set apart to the widow as a homestead by ..order of the Probate Court, after the death of her husband, the maker of the note and mortgage, notwithstanding neither were presented to the administrator for allowance. By the order of the Probate Court, the mortgaged property was segregated from the general estate. The administrator had no possession of it or control over it, and the presentation to him of a claim against that property would have been a vain and useless proceeding. The mortgage cannot be a claim against the estate when the estate has no interest whatever in the property mortgaged.

It will be readily perceived that none of the cases cited present the exact question involved in the present case. The distinction lies in the fact that here the mortgaged property belongs to the general estate, and is a portion of the assets in the hands of the executrix.

In the case of Ellis v. Polhemus, 27 Cal. 350, the meaning of the word “ claim,” as used in the last clause of section one hundred and thirty-one of the Probate Act, was under consideration. It was said by Chief Justice Sanderson that “ the meaning of the word ‘ claim ’ is broad enough to embrace a mortgage or any other lien,” and it. support of this construction he refers to the one hundred and eighty-sixth section, in which “mortgages and other liens are expressly mentioned as valid claims against the estate.” In the concurring opinion of Justices Shafter and Sawyer, the mortgage, as distinct from the note secured by it, was held to be within the scope of the word “claim,” as limited by that section. It is a familiar principle of construction that a word repeatedly used in a statute will be presumed to bear the same meaning throughout the statute, unless there is something to show that there is another meaning intended. *161Applying this rule, the opinion of the majority of the Court in Ellis v. Polhemus would seem to be decisive of this case.

It may be contended that the second clause of section one hundred and thirty-three recognizes a distinction between a claim considered as a direct demand for money due from the estate and the mortgage given to secure it. We understand this section to provide merely, that if a claim founded upon a bond, bill, note, or other instrument be secured by mortgage, the mortgage, or a note of the record may be attached and filed with the evidence of indebtedness, thus avoiding the necessity of a separate presentation and affidavit. It goes to the manner of presentation merely, but does not affect the question of its necessity.

Upon principle there would seem to exist the same reasons for the examination of a mortgage lien against the property of an estate by the executrix and the Probate Judge, and their opportunity to allow or reject it in part or wholly, as exists in the case of any other demand; for it must be satisfied, if at all, from the property of the estate which is in their charge, and which it is their duty to protect in the interest of creditors and heirs. We think that the failure to present the mortgage to the executrix and the Probate Judge in the manner required by the Probate Act, was fatal to plaintiff’s recovery.

We do not deem it necessary to notice at length other points made by appellant. The alleged insufficiency of the notice to creditors is not material. Conceding it to have been fatally defective, this could only operate to extend the time for presentation of the claim until due and proper notice should be given.

Mor does the alleged verbal allowance of the claim by the executrix aid the plaintiff’s case, for if a verbal allowance would be considered effectual in any case, still the action of *162the Probate Judge upon the claim was as necessary as that of the executrix.

Judgment affirmed.

Hr. Chief Justice Wallace did not express an opinion.