67 Cal. 245 | Cal. | 1885
The complaint, a demurrer to which was sustained by the court below, alleges, among other things, the decease of Wm. W. Hill, the appointment of an administratrix of his estate, the statutory publication of notice to creditors, the expiration of the statutory time for the presentation of claims against the estate, the payment of all claims against it “except for some inconsiderable sums which may have been due for expenses of administration,” the then marriage of the administratrix, which operated a revocation of her letters, the subsequent appointment of the defendant Statham as administrator, the execution of his bond as such administrator with the defendants Morrow, Sutherland, and Morgan, as sureties thereon, the qualification of the administrator, his subsequent entry upon the duties of the trust, and his receipt of real and personal property of the estate of large value, and then charges in substance that defendant Statham did “fraudulently sell all the real property of the decedent,” in
Counsel is mistaken in supposing that this section authorizes the recovery upon the bond of the administrator,/ The preceding one (§ 1571) provides for an action upon the bond in case of neglect or misconduct in the proceedings of the executor in relation to any sale. It reads: “If there; is any neglect or misconduct in the proceedings of the execjutor in relation to any sale, by which any person interested in the estate suffers any damage, the party aggrieved may recover the same in an action upon the bond of the executor or administrator, or otherwise.” And this is followed by the provisions of section 1572 which make the executor or admhiistrcáox, as the case may be, who fraudulently sells any real estate /of a decedent, but not the sureties, liable in double the value of the land sold, as liquidated damages, to be recovered in/ an action by the person having an estate of inheritance therein/ It is evident, therefore, that section 1572 of the Code of Civil Procedure affords no warrant .for an action upon the bonti of the administrator for the recovery of double the value of/ the land alleged to have been fraudulently sold by the ad/ministrator. Nor does the complaint in question contain sufficient averments to entitle the plaintiffs to recover under the provisions of section 1571, supra. The right there given (upon the b/ond) is to any person interested in the estate who suffers damagje. The complaint contains no averment with respect to any proceedings in the Probate Court having jurisdiction of the estate/of the deceased Hill subsequent
Judgment affirmed.
McKinstry, J., and McKee, J., concurred.