Schadt v. Heppe

By the Court, Belcher, J.: The plaintiff did not present his note and mortgage to the administrator for allowance within ten months after the first publication of notice to creditors, nor within ten months after they became due; and the only question is, whether they thereby became barred under the provisions of section one hundred and thirty of the Probate Act.

The mortgage was executed by Jacob Heppe and- his wife, upon a lot in the City of Sacramento, then held and owned by them as common property, to secure his individual note.

On the 20th day of February, 1870, and before the note became due, Heppe died intestate, leaving the defendants, Henrietta, his widow, and liosa Henrietta, his infant daughter, his only heirs.

Early in March of the same year letters of administration upon the estate were issued to the defendant, William Hi cholas Heppe, who thereupon qualified and entered upon the duties of his office.

In April, 1870, upon petition of the widow, the Probate Court made an order, which is still in force, setting apart the mortgaged premises for the use and benefit of the widow [437]and her infant child, and freeing the same from further administration.

In his complaint the plaintiff has disclaimed all right to go against the general assets of the estate, or to have any decree entered, other than for the foreclosure of the mortgage and sale of the premises, for the payment of the sum due on the note, and costs of suit.

At the trial the plaintiff obtained a decree foreclosing his mortgage; but no judgment over was rendered against any of the defendants or the estate.

When the mortgaged premises were set apart for the use of the widow and family, they ceased to be a part of the assets of the estate, and were no longer subject to the control of the administrator or the Probate Court.

The present right to the possession of the property at once passed to the widow and child, and they thenceforth held it subject to the mortgage, but free from all other claims against the estate. (Estate of Orr, 29 Cal. 101.)

For the purposes of a mere foreclosure, therefore, the administrator was no longer a necessary or proper party to the action. ¡Nothing being claimed against the estate, it was a matter of no concern to him whether the mortgage should be foreclosed or not.