Ham v. Henderson (1875) · DecisionDepot

Ham v. Henderson

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jul 1, 1875 No. No. 4132Published

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Holding. The death of a judgment debtor dissolves an existing attachment, and an administrator may maintain an action for conversion of estate property occurring after the decedent's death but before the administrator's appointment.

Issues

Whether the death of a judgment debtor dissolves an attachment.
Whether an administrator may sue for conversion of estate property occurring prior to the issuance of letters of administration.
Whether a demand for property is required when the defendant's taking is tortious.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The death of Sturgeon, the judgment debtor, had the effect, in law, to dissolve the attachment.”

“The taking of the property by the defendant having been tortious, no demand by the plaintiff previous to the commencement of the action was necessary.”

Synopsis

Dissolution of an Attachment.—The death of a person after the levy of an attachment on his property dissolves the attachment.

Tboveb by an Administbatob.—An administrator may bring an action of trover in his own name to recover the value of personal property belonging to the estate, tortiensly taken after the death of the intestate and before letters were issued.

Demand in Case of Tboveb.—If the taking of personal property is tortious, no demand is necessary before bringing suit.

Complaint in Tboveb by an Administbatob.'—In an action of trover brought by an administrator to recover the value of personal property belonging to the estate and converted by the defendant, an averment in the complaint, that the estate owned and possessed the property, is equivalent to an averment that the administrator owned and possessed it.

Tboveb.—An administrator has a special property in the personalty of the estate, which enables him to bring trover to recover its value when converted.

By the Court 1. The death of Sturgeon, the judgment debtor, had the effect, in law, to dissolve the attachment. (Ham v. Cunningham, ante, p. 365.)

2. The right of the plaintiff to the possession of the personal estate of the deceased, took effect by relation as of the date of the death of the intestate. “He is deemed in law from that time to have the possession, or to be entitled to the possession of the personal property, as the ease may require. The administrator may, therefore, institute an action in the nature of the action of trover, in his own name—his special property being sufficient for that purpose—against a person who, after the death of the deceased, and before the issuing of the letters of administration, converts to his own use the personal property of the estate of the deceased. His right of action in such cases is the same as in case of a conversion after his appointment as administrator.” (Johns v. Nolting, 29 Cal. 511.) The taking of the property by the defendant having been tortious, no demand by the plaintiff previous to the commencement of the action was necessary.

3. The complaint is good. The averment that “said estate was the owner and possessed ” the property, is equivalent to an averment that the plaintiff, as administrator, was the owner in possession.

Judgment affirmed.

Ham v. Henderson

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