In re Estate of Schroeder

By the Court, Crockett, J.: In respect to the Everett street lot, the order of sale must be affirmed. The appellant claims no interest therein, and the owner who has succeeded to the title of the sole devisee having expressly consented to the order of sale, it does not concern the appellant whether it is erroneous or otherwise. Nor is it clear that he is entitled to be heard in respect to the Minna street lot, so long as he holds the possession of it adversely to the administrator, and refuses to account for the rents and profits. But waiving this question, we deem it best to dispose of the appeal on its merits.

Without entering into a critical analysis of the petition for the order of sale, it will suffice to say, that we think it states all the necessary jurisdictional facts, and is otherwise sufficient. At the hearing of the petition, an objection was made to the introduction in evidence of the judgments in the cases of Nolting and Schroeder against the administrator, on the ground that transcripts of the judgments had not been filed in the Probate Court within thirty days after they were rendered. But section one hundred and forty of the Probate Act only requires that “ a certified transcript of the judgment shall be filed in the Probate Court,” and is silent as to the time within which it shall be filed. It is true, sec[316]tion one hundred and thirty-three provides that claims which have been allowed by the administrator or executor and approved by the Probate Judge shall be filed within thirty days thereafter: but no penalty is prescribed for a failure to file them within that time, and the provision as to time is merely directory. Such appears to have been the opinion of this Court in Willis v. Farley, 24 Cal. 501. But the judgments, as originally rendered, were informal and omitted the pro-, vision that they were to be paid out of the estate in the due course of the administration. This omission was supplied by an amendment, made some years after the judgments were rendered; and it is objected that the Court exceeded its powers in permitting the amendment. But it appears on the face of the judgments, as amended, that the amendments were made by the records in the actions; and the power of the Court to correct clerical errors and misprisions by the record itself, after the expiration of the term, is well settled in this State and elsewhere. (Swain v. Nagle, 19 Cal. 127; Castro v. Richardson, 25 id. 49; Hegeler v. Henckel, 27 id. 497.)

Another point made by the appellant is, that when the judgments were offered in evidence they had already been barred by the Statute of Limitations, and were no longer valid claims against the estate. Section fourteen of the Probate Act provides that “the effect of any judgment rendered against any executor or administrator, upon any claim for money against the estate of his testator or intestate, shall be only to establish the claim in the same manner as if it had been allowed by the executor or administrator and the Probate Judge; and the judgment shall be that the executor or administrator pay in due course of administration the amount ascertained to be due.” The question then is, whether the Statute of Limitations runs against a claim from the time it is allowed, pending an open and unsettled administration. In Beckett v. Selover, 7 Cal. 229, referring