Andrade v. Azevedo

KNIGHT, J.

Certain heirs of Manuel Francisco Azevedo, deceased, filed exceptions to the administrator’s final account, and the exceptions were disallowed; whereupon they took this appeal from the decree of settlement.

[711]

The controversy arises over the refusal of the court to charge the administrator with the amount of an outlawed debt. The circumstances relating to the debt are set forth in an agreed statement of facts embodied in the bill of exceptions, and are as follows: The administrator is a surviving son of the decedent, and during the decedent’s lifetime the administrator borrowed $565 from him. Part of it, $400, was borrowed more than two years prior to the decedent’s death, and the remainder, $165, within two years preceding his death. Neither loan was evidenced by any writing. In his final account the administrator charged himself with $165, but claimed that the balance of $400 was barred by the statute of limitations.

It is well settled that the representative of an estate is chargeable for his own debt to the estate as for so much money in his hands, unless it appears that the debt is uncollectible. (11B Cal. Jur., secs. 1100, 1106, pp. 554, 560;

Sanchez

v.

Forster,

133 Cal. 614 [65 Pac. 1077].) The court properly held in the present case, therefore, that the outlawed debt, being legally uncollectible, was not chargeable against the administrator.

Appellants contend, however, that subsequent to the death of the decedent the administrator acknowledged the debt in writing which gave rise to a new promise sufficient to remove the debt from the operation of the statute of limitations. This contention is based upon an allegation in the administrator’s verified petition for letters of administration to the effect that part of the estate of the decedent consisted of “the sum of $565 loaned and advanced by decedent to petitioner, together with interest, the exact amount of which is at this time unknown to petitioner”. Later, it appears, the administrator failed to mention said indebtedness in his inventory, and appellants sought his removal on that ground. As a result of the removal proceedings the court ordered a new inventory to be filed, pursuant to which order the administrator filed two amended inventories, each setting forth the following item: “Indebtedness of J. F. Azevedo to decedent for money loaned amounting to $565, appraised at $165.”