Estate of McDougald

SHAW, J.

This is an appeal by Louise E. Boggs, as executrix of a creditor of deceased, from that part of the order settling the final account of Carrie B. McDougald, as administratrix of the estate, declaring that said administratrix holds a valid claim against the estate, secured by mortgage, and is entitled to a contingent dividend out of the moneys on hand, upon the excess of the claim over the value of the mortgaged property.

The deceased died on November 17, 1898, and his widow, Carrie B. McDougald, was appointed and qualified as administratrix of his estate on December 10, 1898. The real estate was appraised at twenty-four thousand dollars. It was mortgaged to R. B. Parker upon a mortgage executed in 1890 to secure a note of twenty-two thousand dollars, due five years after date, upon which the principal and a considerable amount of interest remained unpaid at his death. When Mrs. McDougald qualified as administratrix the mortgage debt was about to become outlawed, and the holder of the mortgage, threatened a foreclosure suit. There was no money belonging to the estate, and no means apparent from which money could be obtained. In order to prevent a foreclosure and save the property to the estate she purchased and obtained an assignment of the mortgage, and of the debt thereby secured, paying the price out of her own moneys. It is not claimed that she obtained any discount. At thaj; time the debt had not been presented or allowed as a claim against the estate. After the assignment to her she presented it as a secured claim, and it was allowed by the judge of tip superior court by indorsing thereon and signing the following statement: “Allowed and approved the 14th day of March, 1899, for $23,652.30 and interest.” Thereafter she presented for settlement her first

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account current as administratrix of the estate, including therein a “list of claims presented and allowed” in which her claim was described as follows: ‘‘Claimant Carrie B. McDougald; amount $23,652.30 and int., date of allowance March 14, 1899.” After due notice and hearing the court made an order allowing, approving, and settling this account as rendered.

It is objected that this claim was never properly presented because a copy of the assignment to Carrie B. McDougald is not set out therein. Section 1497 of the Code of Civil Procedure provides that if a claim is founded on a “bond, bill, note, or any other instrument,” a copy of the instrument must accompany the claim. A copy of the note given by the deceased and secured by the mortgage was attached to the claim. This is all that was necessary to comply with the above provision of the code. The claim was not founded on the assignment, but on the debt of the deceased as evidenced by the note.