63 P. 1030 | Cal. | 1901
Appeals from an order of sale of real estate, an order settling annual account of administratrix, and an order for mortgage of real property. The several appeals will be considered in the order stated.
The deceased died seised of two lots of land, described in the petition, which he devised to his widow, Tiny Freud (now administratrix), "to hold the same during her lifetime in trust for (testator's) five children" (named in the will, and) "upon the death of (the) wife. . . . to be divided among (his) said children share and share alike." The will *669 was admitted to probate and letters testamentary issued to Jacob Freud, the executor therein named, March 19, 1883. An order for a family allowance to the widow of two hundred and fifty dollars a month was made December 29, 1883. The executor's final account, showing a balance of two thousand and seventy-eight dollars and sixty-two cents in his favor, was settled May 25, 1888; and thereupon he was discharged, and Mrs. Freud, the widow of deceased, was appointed administratrix with the will annexed. The estate coming into her hands consisted of the two lots above referred to, found to be of the present value, respectively, of six thousand five hundred dollars and eighteen thousand five hundred dollars.
The latter lot was subject to a mortgage of the testator to the German Savings and Loan Society for twelve thousand five hundred dollars, and, when the petition was filed, had been sold, May 31, 1898, to the bank under a foreclosure decreee for eleven thousand one hundred and forty-three dollars and forty-six cents. From this sale appellant, the Warner Brothers Company, had redeemed, November 30, 1898, as successor in interest of Jacob Freud, the former executor, and one of the devisees under a deed of date October 1, 1897 — the redemption money being eleven thousand six hundred and nine dollars and forty-four cents; and, in a suit brought by him against the administratrix of the estate, and the devisees other than Jacob, a decree of strict foreclosure had been rendered June 16, 1899, foreclosing their interests and that of each of them in the property sold, unless redemption should be made within sixty days from the date of the decree. The mortgage, it will be observed, had not been presented to the executor as a claim against the estate.
The petition for the sale of real estate was filed June 7, 1899. Up to this time, as appears from the petition and the findings, the administratrix had received in rents the sum of thirty-seven thousand five hundred and eighty-two dollars and eighty-five cents, all of which had been disbursed in payment of interest on the mortgage, taxes, repairs, and other expenses of administration, except one hundred dollars per month, which had been applied by her on her family allowance. The balance due to Jacob Freud, the former administrator, two thousand and seventy-eight dollars and *670 sixty-two cents remained unpaid. The estimated amount of the expenses and charges of administration to accrue was two thousand dollars. The order of sale was based by the court on the double necessity of redeeming the mortgaged premises from the appellant's lien, and of paying "debts, expenses and charges of administration accruing and to accrue."
With regard to the former ground, the contention is that the court was not authorized to order a sale for the purpose of redeeming the mortgaged premises from the appellant's lien. Such authority, it is said, could be derived only from the amendment of 1893 to section 1536 of the Code of Civil Procedure, which authorizes a sale "for the advantage, benefit, and best interests of the estate and those interested in it." But under the decision in Estate of Packer,
The question is an important one, but seems sufficiently clear. The executor or administrator is intrusted by the law with the property of others (Code Civ. Proc., secs. 1452,
Of the cases cited to the contrary by the appellant — Estateof Knight,
Nor is the decision in Estate of Knight, supra, applicable here. In that case it was said — as is doubtless true — that, while it is the duty of the administrator to preserve the estate, "this does not mean that he is, at discretion, to pay off all encumbrances resting on the property upon the notion that the property may increase in value, and thereby a speculation may be made by the estate," and the point directly ruled was that "he cannot advance money to remove encumbrances, unless his intestate was bound to pay the money." Thus, apparently, the decision is placed on two grounds, namely: 1. On the ground expressed, which is in effect that the administrator cannot pay all encumbrances at discretion for speculative purposes, or, it might have been said, for any purpose except for the preservation of the property, and where necessary for that purpose; and 2. On the ground that he cannot pay of encumbrances "unless his intestate was bound to pay the money." Nor can it be determined which of these was the governing consideration in the mind of the court. But the power of the administrator to pay off encumbrances in any case results solely from the necessity of preserving the property, and can be justified only on the ground that the lien is a charge on the estate, and therefore a peril to it;and this is equally true whether the lien was created by the intestate, or, as in the case of taxes, in some other way. The circumstance that the lien was not created by the deceased may therefore be disregarded, and the decision may be construed with reference to the case before the court, and the expressed grounds of the decision. Thus construed, it may be regarded as holding simply that the administrator was not justified, under the circumstances of the particular case, in redeeming from a lien which his intestate was not bound to pay. *673
If, however, the decision be construed as based on the latter circumstances, it does not apply to this case, where the fact is different. Here the mortgage was made and a debt contracted by the deceased. Nor was the debt barred by failure to present it. Suit could still be maintained on it (Code Civ. Proc., sec. 1500), and it differed from other debts of the estate only in the extent to which it was a lien. Nor was the case materially altered by the sale and redemption. The effect of this, in the legal aspect of the case, was simply to terminate "the effect of the sale," thus restoring the property to the estate, but reviving the lien of the mortgage for the benefit of the party redeeming. (Code Civ. Proc., sec. 703.) The appellant acquired no title, but an equitable lien only, by subrogation to the lien of the mortgagee. (Pomeroy's Equity Jurisprudence, secs. 798, 799, 1211, 1212.) It is, therefore, still the lien of the original mortgage from which redemption is to be made.
In another respect, also, is the case of Estate of Knight,supra, distinguishable from the case at bar. In that decision it was observed by the court, with reference to the case before it, that in such cases, where redemption was necessary, resort could be had to a court of equity. But under the existing law, where in the course of any regular proceeding the relief becomes appropriate, the resort may now be had to the court in which the administration is pending. (Toland v. Earl,
It is also objected, on the supposed authority of the decision in Estate of Crosby,
With regard to the settlement of the administratrix's account, the question as to the balance of the family allowance claimed by the widow was expressly reserved from the decision by the court, and, therefore, need not be considered. The sole question is as to the item of one hundred dollars per month credited to the widow on account of family allowance. This was equivalent to a little over six years' full allowance, a period that covers less than the first two years of her administration; so that, if we leave out of view the delay of payment, the widow has received her full allowance for that period, and no more. Whether her allowance should have been further cut down by reason of her delay in closing the estate was a question for the lower court to determine, and we see no reason to disturb its decision.
With regard to the order for mortgage little need be said. The authority of the court to order a mortgage for the purpose of paying liens on the realty of the estate is expressly given by the provisions of the statute (Code Civ. Proc., sec. 1578), and the constitutionality of the act has been affirmed by this court in the case of Murphy v. Farmers' etc. Bank, ante, p. 115. As to the propriety of the order there can be no doubt. The authority given to the administratrix extends only to the mortgage of the property covered by the lien, which will be lost unless redeemed. No one, therefore, so far as his interest in the estate is concerned, can be injured or aggrieved by the order. The appellant is indeed interested adversely to the estate as a claimant of the land, but in this capacity he has no standing in court, and his grievance, if any in failing to acquire the property of the estate cannot be considered.
The orders appealed from are affirmed.
Hearing in Bank denied.