Opinion
Department One
Appeal from a judgment of the Superior Court of San Joaquin County.
COUNSEL:
A demand on the defendant as administrator was necessary before the action could be maintained. (Jones v. Tanner, 7 Barn. & C. 544; Holland v. Clark, 1 Younge & C. Ch. 167; Schroeder v. Jahns , 27 Cal. 274.)
J. H. & J. E. Budd, for Appellant.
August Muenter, for Respondent.
It was the duty of the defendant to pay the amount distributed to the plaintiff within the time limited by the decree. Where it is the duty to pay no actual demand is necessary. (Halleck v. Moss , 22 Cal. 266; Cummings v. Howard , 63 Cal. 504; O'Connor v. Dingley , 26 Cal. 19; Stacy v. Graham , 14 N.Y. 492; School District v. Zink , 25 Wis. 636; Smith v. Emery, 7 Halst. 53; Watson v. Walker , 23 N.H. 471; Brent v. Maryland, 18 Wall. 430.) The defendant was liable for interest. (Civ. Code, § 3287; Mix v. Miller , 57 Cal. 357; Cummings v. Howard , 63 Cal. 504; Stacy v. Graham , 14 N.Y. 492; Kent v. Dunham , 106 Mass. 586; Jumel v. Jumel, 7 Paige, 591; Henry v. State , 9 Mo. 778; People v. Co. of N. Y. 5 Cowen, 331; Swett v. Hooper , 62 Me. 54; Page v. Fowler , 39 Cal. 421; Freeborn v. Norcross , 49 Cal. 313; Kelley v. McKibben , 54 Cal. 192; Davis v. Greely , 1 Cal. 422.)
JUDGES: Searls, C. Belcher, C. C., and Foote, C., concurred.
OPINION
SEARLS, Judge
Defendant was administrator of the estate of one Joseph M. Davis, deceased.
His final account as such was rendered, settled, and a decree of distribution made by the court.
This action is brought to recover the amount or sum distributed to plaintiff by that decree, and which was by the terms of the decree ordered to be paid by the administrator within ten days from September 20, 1881.
The cause was tried by the court, who filed findings in writing, and rendered judgment thereon in favor of plaintiff. Defendant appeals from the judgment and the case comes up on the judgment roll.
Two points are urged by appellant. First, that the findings fail to show that a demand for payment was made upon defendant before suit was brought.
Second, that no action can be maintained against defendant as an individual until demand on him as an administrator, and refusal to pay.
One who receives money standing in the position of a trustee is in general not liable in an action for money received until demand is made or some breach of trust or duty committed. (Walrath v. Thompson, 6 Hill, 540.)
In the present case the money was received [7 P. 704] as administrator, and when the decree of distribution was made by the court requiring defendant within ten days to pay plaintiff the sum of money awarded her, and to make to her the assignments provided to be made to her, it became and was the plain duty of defendant to comply with the terms of the decree, and having for nearly three years failed so to do, he was guilty of a breach of duty, and no demand was necessary before suit brought.
The decree of distribution had in most respects all the efficacy of a judgment at law, or a decree in equity.
It could have been enforced by proceedings for contempt. (Wheeler v. Bolton , 54 Cal. 302.)
An action could be maintained upon it for non-compliance with its requirements, and we see no greater necessity for a demand than exists in case of suit upon an ordinary judgment at law, or before issuing execution upon a judgment.
Defendant was liable in contempt for not making payment under the decree, and as to him, suit brought was a sufficient demand. (Cummings v. Howard , 63 Cal. 503.) Second, the action was properly brought against defendant individually.
In actions against administrators and executors, founded upon promises made by the testator or intestate during his life, the defendant must be sued in his representative character; he may plead plene administravit, and the judgment will be not against him personally, but de bonis testatoris .
Not so, however, when an administrator or executor is sued upon his own promise or obligation, made or incurred after the death of the testator or intestate. It is not necessary to name the defendant as executor or administrator, though it has been held it may be done by way of description, but he may be proceeded against individually, and a judgment de bonis propriis had. (Waldsmith v. Waldsmith, 2 Ohio, 156.) No action can be maintained against an administrator as such, that is founded upon malfeasance or misfeasance, or for a tort. (Eustace v. Jahns , 38 Cal. 3.)
A claim against the estate must be presented to the administrator for allowance, before suit brought.
This was not a claim against the estate, but a demand for a part of the estate.
Defendant had been the administrator; as such he had taken all the steps necessary to a distribution of the fund in hand. The court had made its decree requiring him to distribute to plaintiff the property and money sought in this suit. By refusing to comply with the decree he became personally liable to plaintiff as in case of devastavit .
The hardship of paying taxes on the property since 1881, complained of by counsel for appellant, is not entitled to consideration in view of the fact that had appellant performed his duty, by distributing the property as ordered by the court, the taxes thereon would not have devolved upon him to pay.
Like considerations are applicable to the complaint against the interest awarded by the court below.
We are of opinion the judgment of the court below should be affirmed.
The Court. -- For the reasons given in the foregoing opinion the judgment is affirmed.