Sanchez v. Forster

GAROUTTE, J.

efendants, who are appellants, prosecute this appeal from the judgment and order denying their motion for a new trial. The plaintiff, as administrator of the estate of Thomas A. Yorba, deceased, brings this action against defendants, who are sureties upon the bond of Felipe Yorba, the

[615]

former administrator of said estate, to recover money alleged to be due the estate from said former administrator. These appellants were sureties upon his bond, in the sum of two thousand dollars, and judgment has been rendered against them in that sum. At the time of the appointment of Felipe Yorba as administrator he was indebted to the estate of Thomas Yorba, deceased, in the sum of six thousand dollars. It is also conceded that he failed to account to the present administrator for the sum of $685.95, coming to his hands as administrator. No part of these debts has ever been paid.

The court is well satisfied that the sureties upon an administrator’s bond are in no sense guarantors of a debt owed by the administrator to the deceased in his lifetime. In view of the provisions of section 1447 of the Code of Civil Procedure, taken in connection with principles of equitable estoppel presented by the facts of that particular case, a contrary rule was held as to executors in

Treweek

v.

Howard,

105 Cal. 434. But neither the aforesaid section of the code, nor any other section, applies the same restrictions to administrators. This court is not called upon to declare what the common-law rule is ;n such a case, for section 1615 of the Code of Civil Procedure declares: “ No executor or administrator is accountable for any debts due to the decedent, if it appears that they remain uncollected without his fault.” This rule of law applies to the debt of an administrator, equally with that of any other person, and, as before suggested, the special restrictions upon executors, as declared in said section 1447 of the Code of Civil Procedure, are not made applicable to administrators. The true rule governing the liability of sureties of administrators in such cases is declared in

Lyon