Madruga v. Superior Court

THE COURT.

This is a petition for a writ of mandate to compel the respondent Superior Court to make and enter a finding and decree of due publication of notice to creditors in a probate proceeding pending before it. Section 1490 of the Code of Civil Procedure provides for the publication of a notice to creditors “requiring all persons having claims against said decedent to file them, with the necessary vouchers, in the office of the clerk of the court from which the letters were issued, or to exhibit them, with the necessary vouchers, to the executor or administrator, at the place of Ms residence or business to be specified in the notice; provided, said residence or place of business shall be in the county in wMch said proceeding is had.” Petitioner published for the specified length of time a notice to creditors which required all persons having claims against the decedent to file them, with the necessary vouchers, in the office of the clerk of the court from which the letters were issued,' or to exhibit them, with the necessary vouchers, to the executrix at a place of business specified in the notice which was not in the county in which the proceeding was pending. Upon tMs showing the respondent court refused to enter a decree of due publication, and we are of the opinion that such refusal was proper.

Petitioner insists that the designation in her notice. of place of business at which claims might be presented outside of the county should be disregarded as surplusage and •that the legal effect of her notice should be deemed to be such as to require all creditors of that estate to present their claims at the office of the county clerk. We are not prepared to agree that a disregard of the plain language of the statute in such a material particular may be thus disregarded or ignored. Suppose that a creditor should bring suit upon a claim which had been presented only at the place so

[566]

designated

outside

of the county and which had been disallowed by the executrix, would he be entitled to recover thereon, supposing it to be an otherwise valid claim

í

It may well be that under such circumstances the executrix would be estopped to set up the defense that the claim had not been presented in the manner required by law, but we are not prepared at this time to say that the heirs and legatees would be so estopped. Petitioner contends that the purpose and effect of the code section is to give to the executor or administrator a right of election to choose either of the two places specified therein and thus to compel all creditors to present their claims at the place so designated, to the exclusion of any other place, and in support of this contention she argues that if the section 'be construed as giving the right of election to the creditors to present their claims at either of the two places specified in the code, it would be impossible for an executor who had no residence or place of business within the county to comply with its terms. In