Fallon v. Butler

California Supreme Court Jul 1, 1862Published

Before: Field

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Holding. The District Court has jurisdiction to entertain an action for the foreclosure of a mortgage against the estate of a deceased person, as a mortgage lien is not a 'claim' within the meaning of the Probate Act.

Issues

Does the Probate Act divest the District Court of jurisdiction to foreclose a mortgage against a deceased person's estate?
Is a mortgage lien a 'claim against the estate' under the Probate Act requiring presentation to the executor or administrator?

Disposition. affirmed

Quotations verified verbatim against the opinion

“The provision of the statute declaring that no sale of any property of an estate shall be valid unless made upon an order of the Probate Court, applies only to sales by executors and administrators.”

“In this sense a mortgage lien is not a claim against the estate.”

“It is clear to our minds that the Legislature never intended to give to the statute such an extended operation; but that in the use of the term “ claims ” it intended to embrace only such demands or liabilities as might by action be reduced to simple money judgments, and to leave the enforcement of specific liens and equitable rights to the ordinary proceedings in the District Courts.”

Synopsis

Asr action may be maintained in the District Court against an executor or administrator, to foreclose a mortgage upon real estate executed by his testator or intestate, although the debt secured by the mortgage has been presented as a claim to the executor or administrator and allowed by him, and also by the Probate Judge of the county, where the only object of the action is to reach the property mortgaged and subject it to sale, and have the proceeds applied to the payment of the debt secured, and a judgment is not- asked against the general estate of the deceased for the debt or any part of it.

The oases of Ellissen v. Hallech (6 Cal. 386) and Faulkner y. Folsom’s Executors (Id. 412) commented upon and overruled.

The provision of the act regulating the settlement of the estates of deceased persons, declaring that no sale of any property of an estate shall be valid unless made upon an order of the Probate Court, applies only to sales by executors and administrators. It has no reference to judicial sales under the decrees of the District Courts, nor to sales in pursuance of testamentary authority.

The term “ claims,” as used in the act, does not embrace mortgage liens, but has reference only to such debts or demands against the decedent as might have been enforced against him in his lifetime by personal actions for the recovery of money, and upon which only a money judgment could have been rendered.

Field, C. J. delivered the opinion of the Court Cope, J. and Norton, J. concurring.

This is an action for the foreclosure of a mortgage executed on .the twenty-seventh of February, 1856, by David C, Broderick, late [29]of the city of San Francisco, upon certain real property situated within' that city, to secure his promissory note of the same date for ten thousand dollars, payable in twelve months, with interest. Broderick died on the sixteenth of September, 1859, and the action is brought against the executors of his last will and testament, and parties claiming some interest in the mortgaged premises as devisees, legatees, purchasers or otherwise, subsequent to the hen of the mortgage. The complaint alleges the probate of the will, and the issuance of letters testamentary to the defendants, Butler and McGlynn, the executors named therein; the presentation of the promissory note, verified as required by statute, to them, as such executors, for the approval and allowance as a claim against the estate of the deceased, and its approval and allowance by them, and subsequently by the Probate Judge of the county; and prays for the usual degree for the sale of the premises, and the application of the proceeds to the payment of the amount found due upon the note for principal and interest, and for the costs and per centage stipulated. There is no prayer for judgment or execution for any deficiency which may remain after the application of the proceeds of the sale. The plaintiff obtained a decree pursuant to his prayer.

The objection taken by the appellants is to the jurisdiction of the District Court to entertain the action. It is founded upon certain provisions of the “Act regulating the Settlement of the Estates of Deceased Persons,” and the decisions in this Court in Ellissen v. Halleck, (6 Cal. 386) and Faulkner v. Folsom's Executors, (Id. 412).

The provisions of the act referred to are those which declare that no sale of any property of an estate shall be valid unless made upon an order of the Probate Court (sec. 148); that no action shafi be maintained upon any claim against an estate unless the claim has been presented to the executor or administrator and been rejected by him, or if approved by him, has been rejected by the Probate Judge of the county (secs. 134, 136) ; that a claim allowed by the executor or administrator and Probate Judge shall be ranked among the acknowledged debts of the estate, to be paid in due course of administration (sec. 133) ; and that the effect of a judgment rendered against an executor or administrator upon a claim for money against the estate of the testator or intestate, shall be only to

Fallon v. Butler

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