Execution

not to issue

tor of a deceased obligor and the surviving obligors,
for the reason that, as to the former, the judgment
would be payable de bonis testatoris, and as to the
latter, de bonis propriis. Nor has the rule been
changed by statute in this State. On the contrary, our
whole system of probate laws provides for the adminis-
tration of the estates of deceased persons through the
instrumentality of the Probate Court, which ascertains
and directs the order in which the debts are to be paid,
giving priority to such as are by law entitled to it. In
construing this system, this Court has repeatedly de-
cided that in an action against the executor or adminis-
trator to enforce a demand against the estate, the only
office of the judgment in such an action is to establish
the demand as a valid claim against the estate; and it
should appear on the face of the judgment that it is to
be paid out of the assets of the estate in the due course
of administration-an injunction which has been dis-
regarded in this case. No execution can issue upon
the judgment to enforce its payment.-Racouillat vs.
Sansevain, 32 Cal., p. 376; Rice vs. Inskeep, 34 Cal.,
p. 224. Even where an attachment was levied on the
property of the deceased in his lifetime, if he die before
judgment, and the action proceed against the adminis-
trator, the Court rendering the judgment has no power
to order the property attached to be sold in satisfaction
of the judgment.-Myers vs. Mott, 29 Cal., p. 359.
Under our system, therefore, there are even more
cogent reasons than existed under the common law
why there cannot be a joint judgment against the sur-
viving obligors and the executor or administrator of a
deceased obligor." The other Judges conclude their
concurrence as follows: "In our opinion, the judgment
should be affirmed as to all the defendants, except as
to Harriet Coburn, the administratrix of the estate of
A. J. Coburn, deceased; and as to her the cause should
be remanded, with directions that the judgment be
modified by requiring the sum therein mentioned to be
paid out of the estate of the said deceased in due course
of administration."

1505. (§ 141.) When any judgment has been renafter death. dered for or against the testator or intestate in his lifetime, no execution shall issue thereon after his death, except as provided in Section 686; a judgment against the decedent for the recovery of money, must be presented to the executor or administrator, like any other

levied, the

may be

claim. If execution is actually levied upon any prop- If one is erty of the decedent before his death, the same may property be sold for the satisfaction thereof, and the officer sold. making the sale must account to the executor or administrator for any surplus in his hands.

NOTE.-Stats. 1861, p. 638, Sec. 43; 1864, p. 452, Sec. 1. See note to Sec. 1504, ante, and cases there cited, and other sections referred to in full.

1506. A judgment rendered against a decedent, dying after verdict or decision on an issue of fact, but before judgment is rendered thereon, is not a lien on the real property of the decedent, but is payable in due course of administration.

NOTE. This section is drawn from Stats. 1851, p. 82,
Sec. 202.

What

judgment

is not a lion

on real property of estate.

doubtful

1507. (§ 142.) If the executor or administrator May refer doubts the correctness of any claim presented to him, claims. he may enter into an agreement, in writing, with the claimant, to refer the matter in controversy to some disinterested person, to be approved by the Probate Judge. Upon filing the agreement and approval of the Probate Judge in the office of the Clerk of the District Court for the county in which the letters testamentary or of administration were granted, the Clerk must, either in vacation or in term, enter a minute of the order referring the matter in controversy to the person so selected; or, if the parties consent, a Effect of reference may be had in the Probate Court; and the allowance report of the referee, if confirmed, establishes or rejects the claim, the same as if it had been allowed or rejected by the executor or administrator and the Probate Judge.

NOTE.-Stats. 1851, p. 466, Sec. 142; 1861, p. 638,
Sec. 44.

1508. (§ 143.) The referee must hear and determine the matter, and make his report thereon to the Court in which his appointment is entered. The same

referee's

or rejection

Trial by referee, how confirmed, and its effect.

Liability of

executor, etc., for costs.

Claims of

executor,

estate.

proceedings shall be had in all respects, and the referee
shall have the same powers, be entitled to the same
compensation and subject to the same control, as in
other cases of reference. The Court may remove the
referee, appoint another in his place, set aside or con-
firm his report, and adjudge costs, as in actions against
executors or administrators, and the judgment of the
Court thereon shall be as valid and effectual, in all
respects, as if the same had been rendered in a suit
commenced by ordinary process.

NOTE.-Stats. 1851, p. 466, Sec. 143; 1861, p. 639,
Sec. 45.

1509. (§ 144.) When a judgment is recovered,
with costs, against any executor or administrator, he
shall be individually liable for such costs, but they
must be allowed him in his administration accounts,
unless it appears that the suit or proceeding in which
the costs were taxed was prosecuted or defended with-
out just cause.

1510.

NOTE.-Stats. 1851, p. 466, Sec. 144. This was wisely adopted to prevent the wasting of estates in speculative and unnecessary litigation, by allowing them expenses and costs only when they have been incurred in the bona fide discharge of duty.-Hickox vs. Graham, 6 Cal., p. 169. It was the law that suits were permitted in every case for the protection of the administrator; in our State, however, useless and expensive litigation is avoided by a judicious allowance by the administrator.-Deck's Est. vs. Gherke, 6 Cal., p. 669; see, also, 1 How., Miss. Rep., p. 119; 3 id., pp. 216, 303.

($145.) If the executor or administrator is etc..against a creditor of the decedent, his claim, duly authenticated by affidavits, must be presented for allowance or rejection to the Probate Judge, and its allowance by the Judge is sufficient evidence of its correctness, and it must be paid as other claims, in due course of administration. If, however, the Probate Judge rejects the claim, action thereon may be had against the estate

北

the

the

by the claimant, and summons must be served upon the Probate Judge, who may appoint an attorney at the expense of the estate, to defend the action. If the claimant recovers no judgment he must pay all costs, including defendant's attorney's fees.

NOTE. The amendment here supplies an omission in the former law which left the administrator without remedy, if the Court rejected his claim. With proper guards for the protection of the estate against invasion by the one acting as its guardian, the administrator may now sue the estate. The period within which the claim must be presented is the same as that relating to other claims.-Est. of Taylor, 10 Cal., p. 482. An administrator cannot pay himself a debt without allowance; it must be presented and allowed as others are.— Est. of Taylor, 16 Cal., p. 434. In the absence of any other regulations, it would seem just and right that action should be brought within the same time after rejection as required in other cases.

neglecting

notice to

1511. (§ 146.) If an executor or administrator Executor neglects for two months after his appointment to give to give notice to creditors, as prescribed by this Chapter, the creditors, Court must revoke his letters, and appoint some other removed. person in his stead, equally or the next in order entitled to the appointment.

1512. (§ 147.) At the same term at which he is required to return his inventory, the executor or administrator must also return a statement of all claims against the estate which have been presented to him, if so required by the Court; and from term to term thereafter he must present a statement of claims subsequently presented to him. In all such statements he must designate the names of the creditors, the nature of each claim, when it became due or will become due, and whether it was allowed or rejected by him.

NOTE.-See Fallon vs. Butler, 21 Cal., p. 32. All claims must be returned. This includes any the administrator had against the decedent (Sec. 1510, ante, and note), it would seem.-Gray vs. Palmer, 9 Cal., p. 636.

30-VOL. II.

Executor

to return

statement

of claims.

CHAPTER VII.

OF SALES AND CONVEYANCES OF PROPERTY OF DECEDENTS.

ARTICLE I. SALES IN GENERAL.

II. SALES OF PERSONAL PROPERTY.

III. SUMMARY SALES OF MINES AND MINING INTERESTS.
IV. SALES OF REAL ESTATE, INTERESTS THEREIN, AND
CONFIRMATION THEREOF.

Personal

estate first

Real estate,

ARTICLE I.

SALES IN GENERAL.

SECTION 1516. Personal estate first chargeable. Real estate, when

sold.

1517. No sales valid, except by order of Probate Court.

1518. Applications for orders of sale.

1519. But one petition, order, and sale, must be had when

it is possible to do so.

1516. (§ 115.) The personal estate of the decechargeable. dent which comes into the hands of the executor or administrator is first chargeable with the payment of the debts and expenses; if the goods, chattels, rights, and credits in the hands of the executor or adminiswhen sold. trator are not sufficient to pay the debts of the decedent, the expenses of administration, and the allowance to the family, the whole of the real estate may be sold for that purpose by the executor or administrator, in the manner prescribed in Chapter VII of this Title.

NOTE.-For the order in which estate is to be resorted to for the payment of debts, see Civil Code, Vol. I: "Sec. 1358. When a person dies intestate, his property, except such as is otherwise disposed of under this Code, and under Chapter V, Title XI of Part III of the Code of Civil Procedure, and exempt from execution therein, is to be resorted to, in the following order, in payment of debts: 1. Personal property. 2. Real property, other than estates of freehold. 3. Estates of freehold." To whom it passes for that purpose.-See Id. "Sec. 1384. The property, both real and personal, of any one who dies without disposing of it by will, passes, in the first instance, to the personal representative of such person