1497.

claims or

copies to

be filed.

(§ 133.) Every claim allowed by the ex- Approved. ecutor or administrator, and approved by the Probate Judge, or a copy thereof, as hereinafter provided, must, within thirty days thereafter, be filed in the Probate Court, and be ranked among the acknowledged debts of the estate, to be paid in due course of administration. If the claim is founded on a bond, bill, note, or any other instrument, a copy of such instrument must accompany the claim, and the original instrument must be exhibited if demanded, unless it is lost or destroyed, in which case the claimant must accompany his claim by his affidavit, containing a copy or particular description of such instrument, and stating its loss or destruction. If the claim or any part thereof is secured by a Claims mortgage or other lien which has been recorded in the by liens office of the Recorder of the county in which the land described. affected by it lies, it is sufficient to describe the mortgage or lien, and refer to the date, volume, and page of its record. If, in any case, the claimant has left any Lost original voucher in the hands of the executor or administrator, or suffered the same to be filed in Court, he may withdraw the same when a copy thereof has been already, or is then, attached to his claim. A brief description of every claim filed must be entered by the Clerk in the register, showing the name of the claimant, the amount and character of the claim, rate of interest, and date of allowance.

NOTE.-Stats. 1861, p. 638, Sec. 42. Some changes have been made in this section, so as to obviate the necessity of a claimant parting with the possession of any written evidence of his demand, when endeavoring to collect it. The allowance of a demand secured by mortgage gives the claim all the virtues and properties which a judgment against executors can have under our system (see Soc. 1504, post).-Falkner vs. Folsom's. Estate, 6 Cal., p. 412. In Willis vs. Farley, 24 Cal., p. 501, the objection was made that the claim, as presented and allowed, was not filed in the Probate Court..

29-VOL. II.

secured

may be

claims.

Rejected claims to

within

three months.

The one hundred and thirty-third section of the Probate Act, as it stood before it was amended in 1861, provided that "every claim which has been allowed shall be filed in the Probate Court," etc. The statute did not declare by whom it should be so filed; and whether this duty was to be performed by the creditor or administrator cannot affect the question, as the statute has specified the presentation of the claim as the only act essential to save the debt from becoming barred (Secs. 130, 131).

1498. (§ 134.) When a claim is rejected, either

be sued for by the executor or administrator, or the Probate Judge, the holder must bring suit in the proper Court against the executor or administrator, within three months after the date of its rejection, if it be then due, or within two months after it becomes due, otherwise the claim is forever barred.

Claims barred by

Statute of

Limita

tions.

When

and who Probate

Judge may examine.

Claims must be

presented before suit.

NOTE.-See note to Secs. 1490-1494, ante, and particularly note to Sec. 1494, Subd. 4, "Judgment," and cases there cited. The time between the death and administration makes no difference, if the suit is brought on a demand properly presented after administration is granted.-Danglada vs. De la Guerra, 10 Cal., p. 387.

1499. (§ 135.) No claim must be allowed by the executor or administrator, or by the Probate Judge, which is barred by the Statute of Limitations. When a claim is presented to the Probate Judge for his allowance, he may, in his discretion, examine the claimant and others, on oath, and hear any other legal evidence touching the validity of the claim.

NOTE.-See notes to Secs. 1490-1494, ante.

1500. (§ 136.) No holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the executor or administrator, except in the following case: an action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against any other

property of the estate is expressly waived in the complaint.

1501.

NOTE.-See notes to Secs. 1490-1494, ante, and cases there cited, and particularly Sec. 1490, Subd. 2, "Mortgages." This is amended so as to authorize action to enforce the lien when all other claim over against the estate is expressly waived.

limitation.

(§ 137.) The time during which there Time of shall be a vacancy in the administration must not be included in any limitations herein prescribed.

NOTE.-Stats. 1851, p. 465, Sec. 137. See note to Sec. 1498, ante, and Danglada vs. De la Guerra, there cited.

action

at time of

1502. ($ 133.) If an action is pending against Claims in the decedent at the time of his death, the plaintiff pending must in like manner present his claim to the executor decease. or administrator, for allowance or rejection, authenticated as required in other cases; and no recovery shall be had in the action unless proof be made of the presentations required.

NOTE.-Stats. 1851, p. 465, Sec. 138. See "Presentation," in notes to Sec. 1490, Sub. Note 4, and Secs. 1493, 1494, ante; Hentsch vs. Porter, 10 Cal., p. 555; Coleman vs. Woodworth, 28 Cal., p. 568. The objection that no proof was made of the presentment of the claim must be raised at the time of the settlement, and cannot be raised for the first time in the Supreme Court. In Bank of Stockton vs. Howland et al. (No. 2,704), Oct. Term, 1871, an action against several joint makers of a promissory note, the defendant Coburn (here represented by an administratrix) died, after filing the answer. Justice Crocket says: "The first point is well taken. Sec. 138 of the Probate Act provides that when a defendent dies pending the action the claim of the plaintiff shall be presented to the executor or administrator for allowance, and that no recovery shall be had in the action against the estate of the deceased without proof of such presentation. In this case there was no such proof, and the attention of the Court was specially called to this point on the motion for a new trial. It is, therefore, clear that a new trial ought to have been granted as to the administratrix." It appears here that the Court below had attention called to the want of proof of presentation, for the only time, on motion for a

Allowance

of claim in part.

Effect of judgment against executor.

new trial. The other Justices, Rhodes, C. J., Wallace, J., and Temple, J., concur that a joint judgment cannot be rendered against co-defendants some of whom are living and some deceased, but render a separate opinion, as follows: "We concur in the opinion of Mr. Justice Crockett, except upon the question of the presentation of the claim to the administratrix. The doctrine of this Court is that the objection to the recovery of a claim against the estate of a deceased person, on the ground that it was not presented to the administrator, as provided in Sec. 138 of the Probate Act, cannot be made for the first time in this Court-that it should have been first made in the Court below.-Hentsch vs. Porter, 10 Cal., p. 555; Coleman vs. Woodworth, 28 Cal., p. 567. The purpose of requiring the objection to be made in the Court below was to give the claimant an opportunity to supply the requisite pleadings or proof, as the case might require. In this case, the objection that there was no proof of the presentation of the claim to the administratrix was made for the first time on the motion for a new trial. It was too late at that time for the plaintiff to have supplied the requisite proof. The objection must, therefore, be disregarded."

1503. (§ 139.) Whenever any claim is presented to an executor or administrator, or to the Probate Judge, and he is willing to allow the same in part, he must state in his indorsement the amount he is willing to allow. If the creditor refuse to accept the amount allowed in satisfaction of his claim, he shall recover no costs in any action therefor, brought against the executor or administrator, unless he recovers a greater amount than that offered to be allowed.

NOTE.-Stats. 1851, p. 465, Sec. 139. Deck's Estate vs. Gherke, 6 Cal., p. 668; Gray vs. Palmer, 9 Cal., p. 634; Fallon vs. Butler, 21 Cal., p. 28; Gurnee vs. Maloney, 38 id., p. 87.

1504. (§ 140.) A judgment rendered against an executor or administrator, upon any claim for money against the estate of his testator or intestate, only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the Probate Judge, and the judgment must be that the

executor or administrator pay in due course of admin- Same. istration the amount ascertained to be due. A certified transcript of the judgment must be filed in the Probate Court. No execution must issue upon such judgment, nor shall it create any lien upon the property of the estate or give to the judgment creditor any priority of payment.

NOTE.-Stats. 1851, p. 465, Sec. 140. See Subd. Note 4 to See 1494, ante, and cases there cited. See ante, Vol. I: "Sec. 669. ( 202.) If a party die after a verdict or decision upon any issue of fact, and before judgment, the Court may nevertheless render judgment thereon. Such judgment is not a lien on the real property of the deceased party, but is payable in the course of administration on his estate." And: "Sec 686. (? 215.) Notwithstanding the death of a party after the judgment, execution thereon may be issued, as follows: I. In case of the death of the plaintiff, upon the application of his executor or administrator, or successor in interest, by the Court in which the judgment was rendered or exists; 2. In case of the death of the defendant, if the judgment be for the recovery of real or personal property, execution may be issued and executed against the property." These must be regarded as exceptional cases to the text, and so provided for expressly by the two sections following. See "Mortgaged Debt."-Falkner vs. Folsom's Executors, 6 Cal., p. 416; Fallon vs. Butler, 21 id., p. 30. Allowed claims have force and effect of judgments. Deck's Est. vs. Gherke, id., p. 669; Secs. 1504 and 1505 ( 140, 141), construed in Belloc vs. Rogers, 9 Cal., p. 127. Judgments establish the validity of the claim.-Chase vs. Swain, 9 id., p. 136; Wells, Fargo & Co. vs. Robinson, 13 id., p. 142. Interest on judgment.-Dexter vs. Paugh, 18 id., p. 378. Form of judgment discussed and given in Myers vs. Mott, 29 Cal., p. 363. Rejection before suit for judgment.— Rice vs. Inskeep, 34 Cal., p. 225. As to joint judgment against estate and living persons.-Bank of Stockton vs. Howland, given in note to Sec. 1502, ante. The Court held such joint judgment to be invalid as to the decedent. But," says Judge Crockett, "this error does not invalidate the judgment as against the other defendants. At common law there could not be a joint judgment, even on a joint demand, against the executor or administra