Opinion
Department One
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of the County of Alameda. W. E. Green, Judge.
COUNSEL:
The appraisement is the guide for the executor in determining the length of time of the notice to creditors, and as to him is conclusive. (Estate of Loeven, Myrick, 203.) If the creditor was dissatisfied with the appraisement, his remedy was by application to the court having the estate in charge; no other court had jurisdiction. (Hope v. Jones , 24 Cal. 90; Gurnee v. Maloney , 38 Cal. 85; 99 Am. Dec. 352; Auguisola v. Arnaz , 51 Cal. 435; Estate of Page , 57 Cal. 241; Brodrib v. Brodrib , 56 Cal. 563; Siddall v. Harrison , 73 Cal. 560; McDaniel v. Pattison , 98 Cal. 86.)
C. C. Marsh, and Stephen G. Nye, for Appellant.
Charles F. Craddock, for Respondent.
The inventory is only prima facie evidence of the amount of property of the estate. (Code Civ. Proc., sec. 1833; 7 Am. & Eng. Ency. of Law, 307; Livingston v. Mott, 2 Wend. 608; Troy v. Evans , 97 U.S. 3; Minor v. Tillotson, 7 Pet. 99.)
JUDGES: Garoutte, J. Harrison, J., and Van Fleet, J., concurred.
OPINION
GAROUTTE, Judge
Schmidt, as executor of the last will and testament of Francis A. Moore, deceased, published a notice to creditors, requiring them to present their claims against the estate within four months after the first publication. Some time thereafter an inventory and appraisement was returned, showing the value of the estate to be six thousand four hundred and eighty-five dollars and ninety-five cents. Two months after the time for presenting claims, as prescribed in the notice to creditors, had expired, this plaintiff presented a claim to the executor for services, which claim was rejected, upon the ground (presumably) that it was not presented in time. Action was brought upon this rejected claim, and at the trial it was shown by oral evidence that the estate of the deceased at the time of the first publication of notice to creditors was of a value in excess of ten thousand dollars, and the court made a finding of fact to that effect. The court also held that the creditors had ten months within which to present their claims against the estate, and that this claim was presented in time, and rendered judgment for plaintiff.
Section 1490 of the Code of Civil Procedure provides that every executor or administrator must immediately after his appointment cause to be published a notice to creditors, and section 1491 following provides that the time expressed in the notice must be ten months after its first publication, when the estate exceeds in value the sum of ten thousand dollars, and four months when it does not. Section 1443 of the same code provides that every executor or administrator must make and return to the court within three months after his appointment a true inventory and appraisement, etc. From the fact that the notice to creditors must be published immediately after the executor or administrator is appointed, and that the executor or administrator after his appointment has three months within which to return the inventory and appraisement, it is plainly observable that the law does not contemplate that the executor or administrator shall obtain information from the appraisement for the purpose of fixing the time specified in the notice in which creditors may present their claims. It would seem, therefore, that the executor or administrator must for himself, and at his own risk, investigate and determine the value of the estate for the purpose of determining the time in which creditors may appear and present their claims; and a wrong determination of that fact by him may often result in serious consequences, for his decision of the fact is in no sense judicial, and therefore not binding [44 P. 162] and conclusive upon creditors. The law, in effect, says that when the estate is of greater value than ten thousand dollars the creditors are entitled to ten months' notice. It does not say that when the executor or administrator determines its value to be greater than ten thousand dollars the notice shall be for ten months; but it is the fact, and not the executor's or administrator's determination of the fact, that is controlling. The law gives the creditors certain rights as to the time within which they may present their claims, and no executor or administrator, by giving a four-months' notice, where he should have given a ten-months' notice, can in any way deprive creditors of those rights.
In this case the trial court found the estate to be of greater value than ten thousand dollars, and further found that the claim was presented within ten months after the first publication of notice to creditors. Under that state of facts the executor should have allowed the claim as a valid and binding claim against the estate. If there had been a decree of due publication of notice to creditors, entered by the probate court prior to the presentation of this claim to the executor, possibly such decree would have been a bar to any investigation in this case by the superior court as to the value of the estate when the first publication was made; for such matter may have been concluded by the decree declaring a sufficient publication. In this case the record discloses no such decree, and there never was at any time in the probate court a judicial determination, either directly or indirectly, as to the value of the estate, or the sufficiency of the notice to creditors; but that question is not here involved.
For the foregoing reasons, the judgment is affirmed.