Opinion
Appeal from the District Court of the Twelfth Judicial District.
The plaintiffs filed their bill against the executors of Joseph L. Folsom, deceased, to foreclose a mortgage made by Folsom in his lifetime. The bill avers that the claim had been presented to the executors, and had been allowed by them and by the Probate Judge. The defendants demurred to the bill. The demurrer was overruled, and no answer being filed by the defendants, the case was referred to a referee to compute the amount due, and take proof of the facts averred in the complaint. Upon the report of the referee, a judgment and decree of foreclosure were entered, as prayed for in the complaint. Defendants appealed.
COUNSEL
Frederick Billings, for Appellants.
Hoge & Wilson, for Respondents.
No briefs on file.
JUDGES: Mr. Justice Heydenfeldt delivered the opinion of the Court. Mr. Chief Justice Murray and Mr. Justice Terry concurred.
OPINION
HEYDENFELDT, Judge
This case differs from that of Ellissen v. Halleck, ante, 386; in that the claim of the complainants was duly presented to the executors, and duly allowed by them and by the Probate Judge. This gave to the claim all the virtues and properties which a judgment against executors can have under our system. This is apparent from the language of Sec. 140 of the Act to regulate the settlement of estates, which provides that the effect of a judgment against an executor, etc., shall be only to establish the claim in the same manner as if it had been allowed by the executor and the Probate Judge, etc.
There was, then, no necessity for this suit, and the judgment rendered can give the complainants no greater rights nor better security than they had before.
The policy of the law against burdening an estate with unnecessary costs, is fully considered in the opinion delivered in the case of Ellissen v. Halleck .
The judgment is reversed, and the bill dismissed.