He represents the entire estate.-Smith vs. Walker, 38 may suo and bo sued for recovery of property. 1582. (§ 195.) Actions for the recovery of any Executors property, real or personal, or for the possession thereof, and all actions founded upon contracts, may be maintained by and against executors and administrators, in all cases in which the same might have been maintained by or against their respective testators or intestates. NOTE.-1. CLAIMS AND ACTIONS AGAINST ESTATE. See Secs. 1500-1510, inclusive, and notes, ante. May not be maintained till administrator is appointed.Harwood vs. Mayre, 8 Cal., p. 580. When administrator or the estate liable, if he gives his own note for debt of estate. Held: either, at election of creditor.35-VOL. II. May maintain for waste, and trespass. Woods vs. Ridley, 27 Miss., p. 119. By an incoming against an outgoing administrator.-Martel vs. Martel, 17 Texas, p. 391. And the one is liable to other, on his bond, for non-delivery of property shown to be in his possession. Baldwin vs. Dearborn, 21 Texas, p. 446. Set-off may be pleaded.-Smalley vs. Trammel, 11 Texas, p. 10. Neither suits against the administrator, nor his fraudulent acts, may affect the estate or those interested in it.-De Witt vs. Miller, 9 Texas, p. 29; Crayton vs. Munger, id., p. 285; Ellison vs. Halleck, 6 Cal., p. 386; Hentsch vs. Porter, 10 Cal., p. 555; People vs. Houghtaling, 7 Cal., p. 348; Heath vs. Lent, 1 Cal., p. 410; see note to Secs. 1490, 1494, ante. In every action against an estate the administrator or executor is responsible for costs, individually; but when bona fide they must be allowed against the estate.Hickox, administrator, vs. Graham, 6 Cal., p. 169. 2. CLAIMS AND ACTIONS FOR ESTATE.-See note to preceding section and cases there cited. The administrator may maintain ejectment.-Curtis, administrator, vs. Herrick et al., 14 Cal., p. 117; but see Gregory vs. McPherson, 13 id., p. 562. For possessory claim.Grover vs. Hawley, 5 Cal., p. 485. As the statute gives the right to sue it is difficult to see why the administrator may not maintain ejectment or a possessory action.-Curtis vs. Herrick, supra. Heir's right of action where no administrator exists.-Updegraff vs. Trask, 18 Cal., p. 459; Soto vs. Kroder, 19 Cal., p. 88; Payne vs. Treadwell, 16 Cal., p. 220. The point that an administrator could not sue for damages for the trespass is answered by the statute.-Secs. 195, 196 (Code Secs. 1582, 1583); Haight vs. Green, 19 Čal., p. 117. May maintain any action which the decedent might for recovery of his property.-Touchard vs. Crow, 20 Cal., p. 163; Bagley vs. Eaton, 10 Cal., p. 126. In many cases the heir may have property delivered over to him before settlement, but till delivered by order of the Court the administrator has the right to it.-Meeks vs. Hahn, 20 Cal., p. 628. 1583. (§ 196.) Executors and administrators may actions maintain actions against any person who has wasted, conversion, destroyed, taken, or carried away, or converted to his own use, the goods of their testator or intestate, in his lifetime. They may also maintain actions for trespass committed on the real estate of the decedent in his lifetime. NOTE.-See note to preceding sections of this Article and cases there cited.-Haight vs. Green, 19 Cal., p. 117; Halleck vs. Mixer, 16 id., p. 575; May vs. Hanson, 6 id., p. 642; Deck's Estate vs. Gherke, id., p. 666. and admin may be sued for waste or 1584. (§ 197.) Any person or his personal repre- Executor sentatives may maintain an action against the executor istrator or administrator of any testator or intestate who in his lifetime has wasted, destroyed, taken, or carried away, or converted to his own use, the goods or chattels of any such person, or committed any trespass on the real estate of such person. NOTE.-People vs. Houghtaling, 7 Cal., p. 348. In this case defendant, as administrator, was sued for funds coming to his hands, collected by his intestate as ex officio Tax Collector, and he was wrongfully in possession of the funds as administrator, and is treated as a trustee de son tort.-Hill on Trustees, p. 173; Harwood vs. Mayne, 8 Cal., p. 580. Judgment against an administrator by default is valid (Chase vs. Swain, 9 Cal., p. 136), it being entered in the usual form. In Coleman vs. Woodworth, 28 Cal., p. 568, it was contended that where the wrongful act of the decedent did not result in any benefit to the estate no cause of action survives against the administrator. The Court said this point was answered by Sec. 197 of the Probate Act (this Code, Sec. 1584), by the words " or committed any trespass upon the real estate of such person." decedent. Surviving partner to business. therein appraised. 1585. ($198.) When a partnership exists between the decedent, at the time of his death, and any other settle up person, the surviving partner has the right to continue in possession of the partnership, and to settle its business, but the interest of the decedent in the part- Interest nership must be included in the inventory, and be to be appraised as other property. The surviving partner must settle the affairs of the partnership without delay, and account with the executor or administrator, and pay over such balances as may from time to time be payable to him, in right of the decedent. Upon the application of the executor or administrator, the Probate Judge may, whenever it appears necessary, order Account to be rendered. Actions on bond of adminis the surviving partner to render an account, and in case of neglect or refusal may, after notice, compel it by attachment; and the executor or administrator may maintain against him any action which the decedent could have maintained. NOTE.-The surviving partners are entitled to the possession and management of the partnership effects. Gray vs. Palmer, 9 Cal., p. 637. Though the stock stands on the books in the name of the decedent, it is competent to show it to be partnership property, and for the survivor to vote at a corporation election, he being the surviving partner and entitled to settle the partnership business.-Allen vs. Hill, 16 Cal., p. 118. Until the settlement of the partnership, a claim against an estate, arising therefrom, does not become absolute, and it has ten months thereafter in which to be presented for allowance.-Gleason vs. White, 34 Cal., r. 264. The surviving partner is the only representative of the firm; but he must account to the administrator and pay over to him the amount due the estate from the partnership business and property, including rents, etc.-Smith vs. Walker, 38 Cal., p. 391. Surviving partner who devotes time to the settlement of the business and enhancing the value of the partnership estate, is entitled to compensation. Though if both living, without special agreement, he would not be entitled to it.-Griggs, administrator, vs. Clark, 23 Cal., p. 430. Surviving partner, though brother, not entitled to administer, when the partnership existed at the date of the death.-Cornell vs. Gallagher, 16 Cal., p. 367. Surviving partner must not waste the estate, if he does the Court will appoint a receiver.-1 Desaussure, p. 427. In case only where special grounds exist, the administrator may not be sued for partnership debt.-Copeutt vs. Merchant, 4 Brad., p. 18; see, also, Babcock vs. Lillis, 4 Brad., p. 218; N. R. Bank vs. Stewart, 4 Brad., p. 254. 1586. ($ 199.) An administrator may, in his own excentor or name, for the use and benefit of all parties interested in the estate, maintain actions on the bond of an executor, or of any former administrator of the same estate. trator may be brought by another adminis trator. NOTE.-See note to Sec. 1582, ante; Martel vs. Martel, 17 Texas, p. 391; Baldwin vs. Dearborn, 21 id., p. 446. executors 1587. ($ 200.) In actions by or against executors, What it is not necessary to join those as parties to whom are not letters were issued, but who have not qualified. NOTE.-See Subd. Note 10 to Sec. 1581, ante. parties to actions. compound. 1588. (§ 201.) Whenever a debtor of a decedent May is unable to pay all his debts, the executor or administrator, with the approbation of the Probate Court or Judge, may compound with him, and give him a discharge upon receiving a fair and just dividend of his effects. A compromise may also be authorized, when it appears to be just, and for the best interest of the estate. NOTE.-Stats. 1861, p. 615, Sec. 71. of property fraudu disposed of 1589. (§ 202.) When there is a deficiency of Recovery assets in the hands of an executor or administrator, frau and when the decedent, in his lifetime, has conveyed by testator. any real estate, or any rights or interests therein, with intent to defraud his creditors, or to avoid any right, debt, or duty of any person, or has so conveyed such estate that by law the deeds or conveyances are void as against creditors, the executor or administrator must commence and prosecute to final judgment any proper action for the recovery of the same; and may recover for the benefit of the creditor all such real estate so fraudulently conveyed; and may also, for the benefit of the creditors, sue and recover all goods, chattels, rights, or credits which have been so conveyed by the decedent in his lifetime, whatever may have been the manner of such fraudulent conveyance. executor sue, as section. 1590. (§ 203.) No executor or administrator is When bound to sue for such estate as mentioned in the pre- to su in ceding section, for the benefit of the creditors, unless preceding on application of creditors, who must pay such part of the costs and expenses of the suit, or give such security to the executor or administrator therefor, as the Probate Judge shall direct. |