Estrada v. Alvarez

DORAN, J. The appeal herein is from an order which denied a petition by a judgment creditor praying that the administratrix of the estate of Ben Alvarez, deceased, be required to pay the judgment of such creditor. At the time of death, an action for fraud against the decedent was pending, instituted by the appellants.

Mr. Alvarez died on January 14, 1951, and on September 24, 1951, letters of administration were issued to Lola G. Alvarez. On December 27th, appellants filed a creditors’ claim against the estate setting forth the pendency of the action and the nature and amount of the claim, which claim was duly rejected by the administratrix. Thereafter Lola G. Alvarez, administratrix, was regularly joined as a party defendant in the appellants’ action, and appeared in said action.

On June 16, 1952, the administratrix filed in said estate a first and final account and petition for distribution, which together with a supplement to the account were heard on July 16, 1952. The present appellants appeared at such hearing and objected to approval of the account and distribution and closing of the estate without providing for payment of the appellants’ claim hereinbefore referred to. The account was approved and distribution of all assets ordered to Lola G. Alvarez, administratrix and widow of the deceased, which distribution was accordingly made, the distributee’s receipt therefor being filed on August 18, 1952, since which date the administratrix has had no estate assets. No appeal was taken from the order approving the final account and ordering distribution.

Thereafter, appellants’ action came on for trial in the superior court, and on January 27, 1954, a written stipulation was entered between appellants and Lola G. Alvarez [17]that appellants have judgment in the sum of $5,000. The judgment entered was against Mrs. Alvarez personally and as administratrix. This stipulation specifically provides that certain personal property should be sold and the proceeds applied on account of the judgment; that Mrs. Alvarez obtain a $1,000 loan, also to be applied on the judgment, and that in addition to the foregoing, Mrs. Alvarez should pay $25 per month, or more, on the judgment. The judgment entered on February 11, 1954, provided that “payment of said judgment is to be made pursuant to the written stipulation of the parties filed concurrently herewith.” On July 1, 1954, the appellants filed an abstract of said judgment in the estate proceedings, and on July 13th filed a “petition for order for payment of claim,” which petition was denied, and this appeal followed.