account to the executor or administrator for any surplus in

his hands. (a)

Statutes of 1851, p. 465, § 141; 1861, p. 638, § 43; 1864, p. 452, § 1. See cases cited under preceding section.

See section 686 Civ. Proc. Code.

Community debts.-For all purposes connected with the administration of the common property, the debts of the community are to be regarded not as the mere private, individual debts of the husband, but as debts of both husband and wife. Packard v. Arellanes, 17 Cal. 525.

No special remedy is provided by our statute for the enforcement of the claims of creditors of the community dissolved by the death of the wife, or the protection of persons interested in its property; but the general powers of courts are adequate to give relief. Ibid.

Execution upon death of defendant after decree.-Where on foreclosure of mortgage against husband and wife, after the entry of decree, the husband died: Held, that the plaintiffs were entitled to an order of sale upon the decree, notwithstanding the death of the husband, but not to execution for any deficiency. Cowell v. Buckelew, 14 Cal. 640.

The decree binds the specific mortgaged premises, and the property passed into the hands of the executrix, subject to its lien-she took only what remained after the lien was satisfied. Ibid.

The 141st section (supra) applies only to money judgments, or to such portions of other judgments as acquire for their satisfaction execution against the general property of the deceased. Ibid.

Belloc ✨. Rogers, 9 Cal. 127, is authority only to the extent of its special concurrence. Ibid.

Where the mortgagor dies after decree of foreclosure entered, and no administration is had upon his estate, it seems that there is no reason why the execution of the decree should be stayed. The suit is in the nature of a proceeding in rem. The decree binds the specific property, and the case is within the reason of the proviso in section one hundred and forty-one of the act concerning the estates of deceased persons. Naglee v. Macy, 9 Cal. 426.

By section 141 of the probate act, judgments are exempted from the provisions of section 131 requiring an affidavit to be attached to the claim, showing that it is due, and that there have been no payments and are no offsets. Cullerton v. Mead, 22 Cal. 95.

On a mere judgment recovered in the lifetime of the deceased no execution can be issued after his death, whether the judgment is a lien or not, for no execution is allowed to issue. It can only be paid in due course of adminis

(a) (From Code of Civil Procedure.)-SEC. 669. 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.

SEC. 686. Notwithstanding the death of a party after the judgment, execution thereon may be issued, or it may be enforced, as follows:

1. In case of the death of the judgment creditor, upon the application of his executor or administrator, or successor in interest.

2. In case of the death of the judgment debtor if the judgment be for the recovery of real or personal property, on the enforcement of a lien thereon.

What judgment is not

property of

tration. But when a specific lien has been acquired by an actual levy of the execution upon property the same may be sold for the satisfaction thereof. Bagley v. Ward, 37 Cal. 121.

SEC. 1506. A judgment rendered against a decedent, a lien on real 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.

estate. N. S./

May refer doubful claims.

Effect of referee's allowance

or rejection.

Trial by referee, how

and its

effect.

SEC. 1507. (2142.) If the executor or administrator doubts the correctness of any claim presented to him, 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 reference may be had in the probate court; and the 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.

Statutes of 1851, p. 466, § 142; 1861, p. 638, § 44.

SEC. 1508. (2143.) The referee must hear and determine confirmed, the matter, and make his report thereon to the court in which his appointment is entered. The same 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 confirm 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.

Statutes of 1851, p. 466, § 143; 1861, p. 639, § 45.

When the account of a claimant is contested, and he applies for leave to amend, by filing a more full and particular account, the amendment should be allowed. Estate of Hidden, 23 Cal. 362.

executor,

costs.

SEC. 1509. (144.) When a judgment is recovered, with Liability of costs, against any executor or administrator, he shall be in- etc., for dividually 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 without just cause.

Statutes of 1851, p. 466, § 144.

Executors and administrators are individually responsible for costs recovered against them in every case; but they shall be allowed them in their administration accounts, except when it appears thut the action has been prosecuted or resisted without just cause. The provisions of the one hundred and forty-fourth section of the probate act, are not limited to settlements in the probate court. Hicox v. Graham, 6 Cal. 667.

executor,

estate.

SEC. 1510. (2145.) If the executor or administrator is Claims of a creditor of the decedent, his claim, duly authenticated by etc., against 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 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.

Statutes of 1851, p. 466, § 145.

See decisions noted under previous sections.

An executor or administrator holding a debt against the estate of the deceased, cannot pay himself and claim a credit, when he has never presented his claim for allowance to the probate judge. The statute requires claims against the estate to be presented in accordance with its directions, whether the claims be held by executors and administrators or by other creditors of the deceased, and if not so presented within ten months from publication of notice for presentation, they are barred. Est. of James A. Taylor, 16 Cal. 34.

See, also, Estate of Taylor, 10 Cal. 482.

A person who has a claim against the estate of a deceased person has no right to collect debts due said estate, and apply them to the payment of his Cook v. Jordan, 21 Texas, 221.

own.

The claim of an executor or administrator against the deceased has no priority over the demands of other creditors, and he cannot retain assets of the estate in payment of his own demand until it has been proved and allowed by the surrogate. Treat v. Fortune, 2 Brad. 116.

Executor neglecting to give

notice to

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

Executor to return of claims.

Statutes of 1851, p. 466, § 146.

As to what are claims within the meaning of this chapter, see decisions cited under section 1495, et seq., ante.

SEC. 1512. ( 147.) At the same term at which he is statement 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.

At the end of Section 1512, Page 120.

1513. (N. S.) If there be any debt of the decedent bearing interest, whether presented or not, the executor or administrator may, by order of the Court, pay the amount then accumulated and unpaid, or any part thereof, at any time when there are sufficient funds. properly applicable thereto, whether said claim be then due or not; and interest shall thereupon cease to accrue upon the amount so paid. This section does not apply to existing debts, unless the creditor consent to accept the amount.

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.

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 possi-
ble to do so.

estate first

SEC. 1516. (115.) The personal estate of a decedent Personal which comes into the hands of the executor or administra- chargeable. tor is first chargeable with the payments of the debts and expenses; if the goods, chattels, rights and credits in the Real estate hands of the executor or administrator are not sufficient to

Page 121.

1516. All the property of a decedent shall be chargeable with the payment of the debts of the deceased, the expenses of administration, and the allowance to the family, except as otherwise provided in this Code and in the Civil Code. And the said property, personal and real, may be sold as the Court may direct, in the manner prescribed in this chapter. There shall be no priority as between personal and real property for the above purposes.

scended to the heir; fourth, lands devised. In re Woodworth, 31 Cal. 595.

when sold.