Opinion
Department One
Appeal from an order of the Superior Court of San Diego County granting a nonsuit.
COUNSEL
Leovy & Humes, and Conklin & Hughes, for Petitioner and Appellant.
Hunsaker, Britt & Goodrich, and Trippet & Neale, for Contestants and Respondents.
JUDGES: Paterson, J. Harrison, J., and Garoutte, J., concurred.
OPINION
PATERSON, Judge
[25 P. 686] On May 29, 1889, the executrix filed an account of her administration of the estate from January 29, 1887, to February 1, 1889, which set forth, among other items of the same nature, a claim of $ 1,240.57 against the executrix by Cave J. Couts, for services, money paid out, etc., "the validity of which charges against said estate "she asked the court to determine on the settlement of the account. After due notice, a hearing was had, and the account was settled. With respect to the item referred to, the court found that it was a legal charge against the estate, and authorized the executrix to pay Couts out of any moneys that might thereafter come into her hands as executrix. On March 5, 1890, Couts filed a petition asking for an order requiring the executrix to sell so much of the real estate as should be necessary to pay his claim. An order to show cause was issued, and at the trial the petitioner introduced evidence tending to support every material allegation of his petition, but on motion of the devisees, a nonsuit was granted, and the proceeding dismissed. From this order petitioner has appealed.
It is admitted that the court, in its decree settling the account, made the order referred to, and that the executrix has not paid, and has not funds in her hands sufficient to pay, petitioner the amount allowed; but it is claimed that the nonsuit and dismissal were proper, because the order of the court allowing Couts $ 1,240.57 is void; that his claim, if any he had, was against the executrix, and until she pays it and presents it in her account as an expense of administration, the court cannot act upon it; that the claim is barred by the statute of limitations, but if the appellant has any remedy at all, it is by execution against the executrix, under section 1647 of the Code of Civil Procedure. We think that the petition states facts sufficient, and that upon the evidence offered by petitioner the motion for nonsuit should have been denied.
Section 1536 of the Code of Civil Procedure provides that "when a sale of property of the estate is necessary to pay. .. . the debts outstanding against the decedent, or the debts, expenses, or charges of administration, the executor may also sell any real as well as personal property of the estate for that purpose, upon the order of the court"; and section 1545 provides that "if the executor or administrator neglects to apply for an order of sale when it is necessary, any person may make application therefor, in the same manner as the executor or administrator,. .. . and the decree of sale must fix the period of time within which the executor or administrator must make the sale ." These provisions were intended to afford creditors of the executors, as well as creditors of the decedent, the means of securing payment of their claims against the estate, and necessarily contemplate expenses of administration which the executor neglects or refuses to pay.
There is nothing in the statutes which requires payment of claims against the executor for services rendered or materials furnished the estate during administration, before they can be allowed in the settlement of his account. It would be a misfortune if there were. Where the representative of the estate has a doubt as to the legality of the claim, or the amount that should be paid for services rendered or materials furnished in the course of administration, it is proper for his own protection, as well as for the protection of the heirs, that the court should determine, after notice to all persons interested, whether the estate is liable at all, and if so, in what amount. (Dwinelle v. Henriquez , 1 Cal. 392; Gurnee v. Maloney , 38 Cal. 88; 99 Am. Dec. 352.)
The order settling the account was appealable, and the allowance of the claim is conclusive against every one interested, except those laboring under disability. (Code Civ. Proc., secs. 1637, 1638; Deck's Estate , 6 Cal. 669; Estate of Stott , 52 Cal. 406.)
The order appealed from is reversed, and the proceeding is remanded for a new trial.