Lichtenberg v. McGlynn
Before: Harrison
Synopsis
Estates of Deceased Persons—Action upon Claim—Recovery.—In an action upon a rejected claim against the executors of the will of a deceased person, the plaintiff can only recover upon the claim presented and rejected, and is not entitled to recover against the executors for any other cause of action.
Id.—Action for Services — Evidence — Burden of Proof—Incompetenoy of Plaintiff.—In an action upon a claim presented against the estate of a deceased person for services alleged to have been rendered within two years prior to his death, at the instance and request of the deceased person, proof must be made of the averments of the complaint, and the failure to make the proof required owing to the statutory inability of the plaintiff to testify in his own behalf does not relieve him from the necessity of producing sufficient evidence to establish his cause of action.
Id.—Admissions of Decedent—Insufficiency of Proof.—Where the deceased and another person were interested in the sale of a railroad,evidence of admissions of the decedent, consisting of statements made by him in a settlement with his co-owner, in which he had allowed the co-owner the sum claimed by plaintiff, as a charge, to be paid by his co-owner to the plaintiff for services rendered and efforts made by plaintiff to secure money in Europe, at the instance of the co-owner, and stating that if his co-owner did not pay the commission he would pay it, is insufficient to establish the value of any services rendered for the decedent individually, and, if the obligation to pay the plaintiff was that of the co-owner, the decedent’s verbal agreement to pay it would be invalid.
Harrison, J. The defendants are the executors of the last will and testament of James M. Donahue, [47]deceased, and after letters testamentary had heen issued to them the plaintiff presented to them a claim against the estate of their testator, which they rejected, and thereupon he began this action for the purpose of having the validity of his claim established. The claim was properly verified March 13, 1891, as follows:
“Estate of James M. Donahue, Deceased,
“To Wm. Lichtenberg, Dr.
“Nov. 20, 1890.
“ To services rendered by said William Lichtenberg for said deceased, at his special instance, within two years next preceding his death, in and about effecting loans and sales for account of said deceased, $15,000.” In his complaint he alleges “that within two years before his death said James M. Donahue became justly indebted to plaintiff in the sum of fifteen thousand dollars for certain work, labor, and services rendered and performed by plaintiff for defendant, and at his special instance and request, during said period of time”; and the court made a finding of fact in the terms of this allegation, and rendered judgment in favor of the plaintiff. The defendants moved for a new trial upon the ground that the evidence was insufficient to sustain the findings of the court, and upon its denial have appealed to this court.
The holder of a claim against the estate of a deceased person can bring an action therefor against the executors only after it has been first presented to such executors. (Code Civ. Proc., sec. 1500.) If his claim is rejected, either by them or by the judge of the superior court, he must bring a suit for the purpose of establishing its validity against the estate. In such action he can recover only upon the claim which has been so presented and rejected, and is not entitled in that action to recover against the executors for any other cause of action. As the plaintiff alleged in his complaint that the claim which he presented to the defendants was “for the services so as aforesaid rendered and performed by him,” and the court so finds, we must [48]assume that its findings were based upon evidence solely in support of the services named in the claim which was presented.
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