Melone v. Davis

Searls, C. —Defendant was administrator of the estate of one Joseph M. Davis, deceased.

His final account as such was rendered, settled, and a decree of distribution made by the court.

This action is brought to recover the amount or sum distributed to plaintiff by that decree, and which was by the terms of the decree ordered to be paid by the administrator within ten days from September 20, 1881.

The cause was tried by the court, who filed findings in writing, and rendered judgment thereon in favor of plaintiff.

[281]Defendant appeals from the judgment and the case comes up on the judgment roll.

Two points are urged by appellant. First, that the findings fail to show that a demand for payment was made upon defendant before suit was brought.

Second, that no action can be maintained against defendant as an individual until demand on him as an administrator, and refusal to pay.

One who receives money standing in the position of a trustee is in general not liable in an action for money received until demand is made or some breach of trust or duty committed. (Walrath v. Thompson, 6 Hill, 540.)

In the present case the money was received as administrator, and when the decree of distribution was made by the court requiring defendant within ten days to pay plaintiff the sum of money awarded her, and to make to her the assignments provided to be made to her, it became and was the plain duty of defendant to comply with the terms of the decree, and having for nearly three years failed so to do, he was guilty of a breach of duty, and no demand was necessary before suit brought.

The decree of distribution had in most respects all the efficacy of a judgment at law, or a decree in equity.

It could have been enforced by proceedings for contempt. (Wheeler v. Bolton, 54 Cal. 302.)

An action could be maintained upon it for non-compliance with its requirements, and we see no greater necessity for a demand than exists in case of suit upon an ordinary judgment at law, or before issuing execution upon a judgment.

Defendant was liable in contempt for not making payment under the decree, and as to him, suit brought was a sufficient demand. (Cummings v. Howard, 63 Cal. 503.) Second, the action was properly brought against defendant individually.