Kos v. Bank of America National Trust & Savings Ass'n

WHITE, J.

This is an appeal by the executor and certain legatees of the estate of the above-named decedent from the decree settling the first and final account of the executor and directing the payment of a claim of the respondent, Bank of America National Trust and Savings Association.

Prior to her death, on January 24, 1935, decedent executed to respondent bank a promissory note in the principal sum of $11,689.65, executing concurrently therewith and as security therefor a trust deed. The note remaining unpaid at the date of her death, respondent bank, within the time allowed by law, duly filed its creditor’s claim with the executor, and such claim was in due course allowed and approved by the executor and the probate court. No payments having been made upon the note, and the same being in default, respondent bank on February 19, 1936, caused to be recorded in the office of the county recorder a notice of breach and election to sell the property described in the trust deed securing the note, as required by and in, conformity with the provisions of section 2924 of the Civil Code. Thereafter, on June 16, 1936, the trustee named in the trust deed sold the real property therein described to the respondent bank for the total sum of $9,500, and after applying the proceeds of said sale to the payment of interest, advances, costs of sale and trustee’s fees, there remained an unpaid balance of $3,637.35. Subsequent to such sale, however, respondent did not seek nor secure a judgment determining the amount of any deficiency.

Thereafter the executor filed his first and final account and petition for distribution, wherein it was alleged, among other things, that all claims presented and allowed against the estate had been fully paid, and prayed for an order directing that the balance remaining in his hands after the payment of costs of administration be distributed to the appellant legatees herein. To this account respondent bank filed written objections based upon the claim that there remained due

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upon the promissory note the hereinbefore mentioned deficiency of $3,637.35, and prayed that the petition for distribution be denied and that the executor be directed to pay such balance to the respondent bank.

With the issues thus joined, the matter was heard by the court, at which proceeding the foregoing facts were stipulated. Thereupon the court found as true the facts above recited, but made no finding that respondent bank had complied with the provisions of section 580a of the Code of Civil Procedure, or that respondent had obtained a judgment determining the deficiency, if any, due upon the note. Thereafter the probate court signed and filed its decree settling the account, decreeing that the estate was insolvent, and the cash on hand in the possession of the executor insufficient to pay respondent’s claim, directing the executor to sell, in the manner provided by law, the personal property specifically bequeathed by the will, and that the executor pay to respondent bank the sum of $3,637.35.