Estate of Bailey

BARNARD, P. J.

Harvey E. Bailey, Sr., was the owner of a parcel of real property subject to an indebtedness secured by a trust deed on which he was personally liable. He agreed, in writing, to sell the property to Delya Linstrum, agreeing to pay off this incumbrance in accordance with the terms of the trust deed and then to convey the property to

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her. After his death the full amount of the incumbrance became due under the terms of the trust deed. Mrs. Linstrum, having fully performed her part of the contract, filed a petition asking that the executor of Bailey’s estate be directed to pay off the trust deed and convey to her a clear title to the property in accordance with the terms of the agreement.

The executor filed an “objection” to the petition alleging, among other things, that the full amount of the trust deed indebtedness was not due and that no- claim for the amount thereof had been presented or filed. The court found in all respects in favor of the petitioner, finding, however, that no claim for the trust deed indebtedness had been presented or filed. An order was entered directing the executor to convey the property to the petitioner free and clear of the trust deed indebtedness, from which order this appeal was taken.

The effect of the order was to require and direct the executor to pay off the trust deed incumbrance and to convey a clear title to the property to the respondent in accordance with the purchase agreement. The sole point raised on this appeal is that the court was without authority to make this order because no “creditor’s claim” for the amount of the trust deed indebtedness had been presented or filed, and that the payment thereof was forever barred by the provisions of section 707 of the Probate Code. The appellant contends that this was a debt of the deceased arising upon contract, and that it was incumbent upon the respondent to present and file a creditor’s claim as required by section 707 of the Probate Code. In support thereof eases are cited in which it has been held that contingent claims based upon contracts of indemnity or warranty come within the purview of this statute requiring the presentation and filing of a claim.

We are not here concerned with any warranty or other contract under which any money was owed to the respondent. Under the terms of the contract, by which the decedent agreed .to sell this property to the respondent, the amount of this incumbrance was not to be paid to her and the amount thereof is not a debt due to her from the estate. The decedent had agreed to convey the property to her free and clear of this incumbrance and the effect of that part of the contract giving him the right to pay off the incumbrance as the installments came due was merely to give him additional