In re Estate of Schroeder

By the Court, Crockett, J.: In respect to the Everett street lot, the order of sale must be affirmed. The appellant claims no interest therein, and the owner who has succeeded to the title of the sole devisee having expressly consented to the order of sale, it does not concern the appellant whether it is erroneous or otherwise. Nor is it clear that he is entitled to be heard in respect to the Minna street lot, so long as he holds the possession of it adversely to the administrator, and refuses to account for the rents and profits. But waiving this question, we deem it best to dispose of the appeal on its merits. Without entering into a critical analysis of the petition for the order of sale, it will suffice to say, that we think it states all the necessary jurisdictional facts, and is otherwise sufficient. At the hearing of the petition, an objection was made to the introduction in evidence of the judgments in the cases of Nolting and Schroeder against the administrator, on the ground that transcripts of the judgments had not been filed in the Probate Court within thirty days after they were rendered. But section one hundred and forty of the Probate Act only requires that “ a certified transcript of the judgment shall be filed in the Probate Court,” and is silent as to the time within which it shall be filed. It is true, sec — 316 — tion one hundred and thirty-three provides that claims which have been allowed by the administrator or executor and approved by the Probate Judge shall be filed within thirty days thereafter: but no penalty is prescribed for a failure to file them within that time, and the provision as to time is merely directory. Such appears to have been the opinion of this Court in Willis v. Farley, 24 Cal. 501. But the judgments, as originally rendered, were informal and omitted the pro-, vision that they were to be paid out of the estate in the due course of the administration. This omission was supplied by an amendment, made some years after the judgments were rendered; and it is objected that the Court exceeded its powers in permitting the amendment. But it appears on the face of the judgments, as amended, that the amendments were made by the records in the actions; and the power of the Court to correct clerical errors and misprisions by the record itself, after the expiration of the term, is well settled in this State and elsewhere. (Swain v. Nagle, 19 Cal. 127; Castro v. Richardson, 25 id. 49; Hegeler v. Henckel, 27 id. 497.) Another point made by the appellant is, that when the judgments were offered in evidence they had already been barred by the Statute of Limitations, and were no longer valid claims against the estate. Section fourteen of the Probate Act provides that “the effect of any judgment rendered against any executor or administrator, upon any claim for money against the estate of his testator or intestate, shall be only to establish the claim in the same manner as if it had been allowed by the executor or administrator and the Probate Judge; and the judgment shall be that the executor or administrator pay in due course of administration the amount ascertained to be due.” The question then is, whether the Statute of Limitations runs against a claim from the time it is allowed, pending an open and unsettled administration. In Beckett v. Selover, 7 Cal. 229, referring — 317 — to a claim allowed against the estate, the Court says: “It does not lose its effect as a judgment against the administrator, and would not be barred unless time enough has run to bar a judgment.” But upon a rehearing the Court said : “As to the question raised in argument, in regard to the Statute of Limitations, it is unnecessary to make any express decision; but we may remark, as a matter of opinion, that the presentation of the claim to the administrator is the commencement of a suit upon it, and is sufficient under our statute to stop the running of the statute.” "We think there are several reasons why the statute does not run, pending the administration, against a claim allowed : First, the creditor is in no default, and has established his demand in the only method authorized by law; second, it often happens that the estate is so involved in litigation, that no fund is available for the payment of debts until all the claims against the estate would be barred by lapse of time, if the statute runs against claims properly allowed. Other reasons might be adduced, but these are sufficient to show that the Statute of Limitations ceases to run during a pending administration against claims duly allowed. The point chiefly relied upon by the appellant is, that there was no extraneous proof to support the judgments of Nolting and Schroeder, which, it is claimed, were not even prima facie evidence of indebtedness as against the devisee. It must be conceded that a judgment against the administrator stands upon no better footing than a claim duly allowed by the administrator and the Court. Section one hundred and forty of the Probate Act so expressly declares, and it results that the same rule must be applied to both. In Beckett v. Selover, 7 Cal. 215, on an application by a creditor for the sale of real estate for the payment of debts, the widow and heirs resisted the application, and denied the existence of the debts. At the trial, the petitioner put in evidence a judgment against the administrator, and also a — 318 — claim on open account, which had been duly allowed by the administrator and Probate Judge. The widow and heirs offered to prove that these claims were not justly due from the estate, but the Court excluded the proof, and on the appeal to this Court the ruling was held to be erroneous. The point involved in the case, and decided by this Court, was, that the heir was entitled to go behind the allowance of the claim, and to show, if he could, that it was not a proper charge upon the estate. We are not aware that this ruling has been modified by any subsequent decision of this Court. But, in the case now under consideration, there was no offer by the contestant to show affirmatively that the judgments of Nolting and Schroeder were unjust, and not a proper charge against the estate; and the point raised here is, that as against the devisee or her grantee, the judgments are not even prima facie evidence of indebtedness. But the proposition is not tenable. There are very satisfactory reasons for holding that in a proceeding for a sale of the property of the heir, for the payment of debts alleged to exist against the estate, he should not be concluded from showing that the pretended debts are unjust, and are not valid claims against the estate. At common law, the real estate went directly to the heir, and the administrator had no control over it, for the payment of debts. If the creditors pursued it in the hands of the heir, it was incumbent on them to establish affirmatively the validity of their demands, and a judgment against the administrator was not prima facie evidence. In Kentucky, however, where the common law system prevails, the Court of Appeals of that State, in a late case, decided that in an action against the heir, a judgment against the administrator was prima facie evidence of the debt. (Hopkins v. Stout, 6 Bush. 381.) But, however the rule may be at common law, there can be no doubt that, under our system, where the real estate is a fund in the hands of the adminis — 319 — trator for the payment of debts, a claim against the estate, duly allowed, is prima facie evidence of the indebtedness as against the heir. Our probate system is derived, mainly from that of Texas, and in most respects is identical with it. Hillebrandt v. Burton, 17 Texas, 138, was an action by the heirs of a deceased person to set aside a claim against the estate which had been duly allowed by the administrator and approved by the Probate Judge. The Court treats the allowance as a quasi-judgment, and holds that in attacking it the burden of proof is on the heir. In the opinion, it is said: “It must be recollected that the suit was brought to set aside and annul a judgment more than ten years after it had been awarded. Now, the rule of law is well settled, that every presumption is in favor of the judgment, and he who attempts to impeach it must assume the labor of distinctly and clearly showing its vice. This is the rule when there has been no considerable lapse of time between the award of the judgment and the suit to set it aside but this rule requires a great deal more stringency, and with a good reason, too, if a great length of time is permitted to elapse before the judgment is impeached. Time, with its continual destructive changes, often removes the evidence by which facts could be proven; * * * * and to call upon a creditor after so great a lapse of time as has occurred in this case, would be equally repugnant to justice and sound policy. The plaintiffs should have proven distinctly and clearly that the claim was barred at the time it was presented, to impeach the judgment of the Probate Court allowing it.” This is an adjudication directly upon the point in issue here, and the reasoning by which it is supported commends itself to our judgment. We are, therefore, of opinion that the judgments, without other proof, were prima facie evidence of the indebtedness. The objection that there was an unreasonable delay in ap — 320 — plying for the order of sale, finds no support in the facts. There appears to have been a persistent and long continued effort on the part of the creditors, to bring the former administrator to an accounting, and the litigation has assumed so many phases, and has been so protracted, as to account for the delay which has occurred. Order affirmed. Hr. Chief Justice Wallace did not express an opinion.