Thompson v. Wood

Temple, J. This is an appeal from an order refusing to grant a change of venue from the city and county of San Francisco to the county of Calaveras. The action is brought to obtain a money judgment against the defendants, as executors of the last will and testament of Susan Scribner, on account of moneys alleged to have been received by the testatrix in her lifetime.

Susan Scribner was a resident of San Francisco at the time of her death. Her will was probated there and her estate is now being administered there. Notice to creditors was there published, and in the notice a place is designated in San Francisco for the presentation of claims. The executors, defendants, however, all reside in Calaveras county and made the motion for the change of venue to that county.

The motion was made at the proper time and in the mode prescribed, and no counter-motion was made that the case be retained for the convenience of witnesses, nor were any facts shown in reply except those above stated.

The motion should have been granted, as the case made by appellants is clearly within the section alluded to.

The respondent makes two points in answer to appellant’s claim.

1. He says that the official residence of the defend, ants is in San Francisco. The statute has not designated any official residence for executors, and they are not'public officers within the meaning of subdivision 2 of section 393 of the Code of Civil Procedure. It is said they are but representatives of the deceased. The executors are, in a sense, trustees, but not of the testatrix. who has no longer trustee or representative, but for the beneficiaries under the will and the heirs and creditors. No rule of law with which I am acquainted gives countenance to the idea that there is an official residence for an executor. In some states the venue of [303]actions is specially declared to be where it would have been necessary to sue the deceased. We have no such law. At common law the executor was sued in transitory actions where he resided.

2. At the hearing the respondents waived their claim for costs against the executors personally and agreed to look to the estate alone for them. In certain cases the executors may be held personally for costs. The plaintiffs have nothing to do with this, and cannot control the matter as between the estate and the executors.