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SUPREME COURT OF CALIFORNIA.

(67 Cal. 637)

In re Estate of Swain, Deceased. (No. 9,705.)

Filed November 12, 1885.

1. ESTATES OF DECEDENTS-UND. E CLAIMS AGAINST-PRESENTATION OF.

Claims against decedent's estates under the law existing in California in 1872, whether due or not due, should be presented to the administrator within the statutory time after publication of notice to creditors, and unless so pre

sented would be forever barred. 2. CLAIM AGAINST ESTATE OF DECEDENT, WHAT CONSTITUTES.

“Claims” against estates of decedents are such debts or demands against the decedent as might have been enforced against him in his life-time by personal actions for the recovery of money upon which a money judgment could have been rendered. A statement of a claim consisting of a balance struck upon an account between the claimant and decedent is sufficient, if properly veri

fied, for presentation to the administrator. B. CLAIMS AGAINST DECEDENTS' ESTATES-PRESUMPTIONS FROM ALLOWANCE OF.

Where claims against estates of decedents are allowed and approved as presented, it is presumed that they were allowed upon vouchers and proofs to the satisfaction of the administrator and probate judge; as where more than legal interest is allowed on an account, a written contract for the payment of such rate of interest will be presumed in the absence of evidence to the contrary.

In Bank. Appeal from superior court, city and county of San Francisco.

W.C. Burnett and R. W. Hart, for appellant.

Winans & Belknap, Cobb & Moore, H. C. McPike, Edw. J. Pringle, Clement, Osment & Clement, Geo. A. Nourse, and M. B. Blake, for respondent.

McKEE, J. In this proceeding the superior court of the city and county of San Francisco, sitting as a court of probate, upon the settlement of the final account of the administrator of the estate of R. B. Swain, deceased, decreed the allowance and partial payment of certain claims against the estate, which, having been allowed by the administrator and approved by the probate judge, were duly filed. The claims thus allowed and ordered paid amounted to $60,000. Three of them were contested at the final settlement.

The first of these claims is as follows:

(1) Estate of R. B. Swain, deceased, 1871, to John Boardman, Dr.: April 8th. To balance of account, as rendered this date,

$4,498 32 November 6th. To cash received this date, as per account,

2,104 66 February 17, 1883. To interest on $4,498.32 from April 8, 1871, to June 14, 1872, at 14 per cent. per month,

811 57 February 17th. To interest on $2,104.66 from November, 1871, to June 14, 1872, at 14 per cent. per month,

192 92

$7,607 47

v.8P,no.9-32

The second :

(2) Estate of R. B. Swain, deceased, to Cartwright, Harrison & Co., Dr.: For balance of account due this day, as per statement hereunto annexed,

$6,751 79 R. B. Swain, Esg., in account current, and interest, to December 21, 1871, with Cartwright, Ilarrison & Co., 1871: January 1. To balance of account rendered,

$6,310 16 December 30. Interest to 31st inst.,

$441 71 Less your portion of balance of interest account 29 at 28 per cent.,

08 441 63

E. E.

$6,751 79 New York, January 2, 1872.

(3) And the third was a claim in favor of Mudge, Sawyer & Co., based upon 14 promissory notes, each of which was dated May 17, 1869, and made payable at New York to the order of R. B. Swain; the first being payable on the first of December, 1872, and each of the others six months after its preceding note became due,—the last being payable on the first of June, 1879. The claims were presented to the administrator in 1873, within due time after the publication of notice to creditors of the estate. Publication was made as required by section 1490, Code Civil Proc., by the administrator in the year 1872.

At that time every holder of a claim against the estate of a decedent was required by law to exhibit the same, verified by affidavit, to the administrator within legal time after publication of notice to creditors for that purpose. The law required that the affidavit upon which to make presentation of the claim must be made“ by the claimant himself, or some one in his behalf.” If made by a person other than the claimant, it was required of him to set forth in the affidavit the reason why the affidavit was not made by the claimant, and to state “that the amount of the claim was justly due; that no payments had been made thereon which were not credited; and that there were no offsets to the same to the knowledge of the claimant or affiant.” None of the claimants verified the contested claims by their affidavits. Each affidavit was made by persons other than the claimants, who describe themselves as “agents and attorneys of the claimants.” The affidavit to the claim of Mudge, Sawyer & Co. substantially conforms to the law under which it was made. But 13 of the promissory notes upon which the claim is founded, were not due at the time of the presentation of the claim to the administrator; and it is contended that the claim was non-presentable, and that the administrator had no authority to allow it. But the law was then, as it is now, that when a person died intestate all his property, real and personal, without any distinction between them, was chargeable with the payment of his debts, (section 1358, Civil Code; 1516, Code Civil Proc.;) and it was made the duty of his administrator to ascertain the amount of claims outstanding against the estate for which it may be liable, so as to provide for their payment out of the assets of the estate. For that purpose the law required that all claims against the decedent, due or not due, should be made known to the adminis. trator by exhibiting them to him verified by the necessary affidavit, so that he could pass upon their genuineness and validity by allowance or rejection. Upon ascertaining in that way the amount of the liability of the estate, the law then cast upon the administrator the duty to report the condition of the estate, “designating the names of the creditors, the nature of each claim, when it became due, or when it will become due, and whether it has been allowed or rejected.” Code Civil Proc. § 1512. If the claim was allowed and approved, the allowance prima facie established its validity against the estate. If it was due and rejected, the claimant was required to establish its validity by suit upon it within three months after rejection, or, if it was not due, then within two months after it became due, (Code Civil Proc. § 1448;) and if its validity was established by recovery thereon, the judgment entitled the claimant to rank as a creditor of the estate and to payment in due course of administration; or if the administrator allowed the claim, although not due, it entitled the claimant to rank in the same way, and, upon deducting a rebate of interest upon the claim, entitled him to payment of the principal sum, or to share in a distribution of the estate pari passu with creditors whose allowed claims were due. Code Civil Proc. § 1648.

From these provisions of the code law, as it was at the time of the presentation of these claims, it is manifest that all claims against a decedent's estate, whether due or not due, could be presented to the administrator within legal time after publication of notice to creditors; and if they were not so presented, the law declared them "forever barred." We are therefore of opinion that, although the promissory notes were not due when the claim based upon them was presented to the administrator of the estate in question, it was, under the law, presentable and allowable as a valid claim against the estate, No interest upon it was demanded, and upon the settlement of the administrator's final account it was properly adjudged to be a valid claim for the principal of the notes.

The next contention is that the statement of each of the other claims is insufficient to constitute a cause of action, or of claim, against the estate; that the statement of each is also ambiguous and unintelligible; and that the claims themselves were not authenticated according to law. The affidavits verifying these claims were irregular. Each was made by a person other than the claimant, styling himself as “agent and attorney of the claimant.” In one no reason is stated why the affidavit was not made by the claimant. In neither does the affiant state that there were no payments or offsets to the claim, except what is credited to his own knowledge; although it is stated that there were no payments or offsets against the claims to

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the knowledge of the claimants. These omissions made the verifications of the claims defective. And the statement of each claim is not free from ambiguity. Each is founded upon an alleged balance due on an account current, in which interest at a higher rate than is legally allowable in matters of account is computed on the debit and credit sides of the account, according to some commercial rule of computation which does not appear in the statement. But, although neither of the claims was verified in all particulars as required by law, and the statement of each is not as clear as it might have been, we think each was substantially sufficient for presentation and allowance under the law. The term “claim,” as used in connection with the estates of deceased persons, has reference, says Mr. Justice FIELD, in Fallon v. Butler, 21 Cal. 25, to such debts or demands against the decedent as might have been enforced against him in his life-time by personal actions for the recovery of money, and upon which a money judgment could have been rendered. A balance struck upon an account between parties is such a demand as would constitute a sufficient cause of action. A suit brought upon such a cause of action against Swain in his life-time would, therefore, have been maintainable, and the statement of such a cause of action in the complaint would have been sufficient to support a judgment against him. Being sufficient for the maintenance of an action against the decedent in his life-time, it would also be sufficient after his death, for the presentation of it to his administrator, if properly verified, as a claim against his estate.

As the subject of a suit, if the statement of the cause of action upon the account was deemed objectionable, defective, or insufficient, the defendant in the action would have had the right to demand a bill of particulars of the items of the account which were to be proved; and as the subject-matter of a claim presented to his administrator, he also had the right to demand a bill of particulars, or "vouchers and proofs” of the account. Code Civil Proc. § 1494.

Both claims were allowed and approved as presented, and the presumption is that they were allowed upon “vouchers and proofs” to the satisfaction of the administrator and the probate judge, as to the principal and interest due on the accounts. Interest is recoverable upon a balance of indebtedness founded on money transactions, or upon an account between parties from the time the amount is ascertained by them. In the absence of an agreement in writing to pay more than lawful interest, the legal rate only ought to be allowed; but there may have been proof of an agreement in writing to pay the higher rate charged on one side of the account and credited on the other side. In law the allowance of the claims, although made upon defective verifications, was not void. It was a judicial act, which entitled the claims to rank as acknowledged debts of the estate, to be paid in due course of administration; but as a judicial act in their favor, it was not binding and conclusive against the heirs, because they were not parties to it. They had therefore the right to question the allowance at the settlement of the estate. The burden of showing the invalidity of the allowance was, however, cast upon them. Estate of Lohse, 62 Cal. 413; Estate of Crosby, 55 Cal. 579; Estate of Schroeder, 46 Cal. 318.

The heirs in this case did question the allowance and approval of the claims. But in the contest which was made, the claimants, by affirmative proof, established the validity of the claims, and the court upon that hearing adjudged them to be valid.

There was no exception taken to the evidence given in the contest; nor is there any specification in the record of any particular in which the evidence was insufficient to justify the decision and judgment of the court, nor is there any specification of errors in law occurring at the trial to which exceptions were taken by the contestants. The evidence is therefore not reviewable; and, as we find no errors of law apparent upon the record, the judgment and order appealed from must be affirmed. It is so ordered.

We concur: Ross, J.; MYRICK, J.; MORRISON, C. J.; McKINSTRY, J.

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LAKE PLEASANTON WATER Co. v. Contra Costa WATER Co. (No.

8,816.)

Filed November 19, 1885.

EMINENT DOMAIN-TAKING LAND FOR RESERVOIR IS PUBLIC USE.

The supplying of inhabitants of an incorporated city with pure, fresh water is, by section 1238, Code of Civil Procedure of California, declared to be a public use, in behalf of which the right of eminent domain may be exercised, and section 1239 of the same Code provides, in effect, that the entire estate in a given piece of land may be taken when needed for a reservoir in behalf of such use. Department 1. Appeal from superior court, county of Alameda. Jumes E. McElrath, for appellant. Fox & Kellogg and Vrooman & Duvis, for respondent.

Ross, J. A demurrer to the amended complaint of the plaintiff having been sustained by the court below, and the plaintiff having declined further to amend, judgment was entered for the defendant, from which the appeal is taken. The action is to condemn certain land of the defendant, to be used by the plaintiff for the purpose of a reservoir in which to store water.

It is alleged in the complaint that the plaintiff is a corporation organized and existing under the laws of the state for the purpose of supplying the inhabitants of the cities of San Francisco and Oakland with pure, fresh water, and for the purpose of supplying water for manufacturing and irrigation.

It is contended on behalf of the defendant that under the provisions of the Code of Civil Procedure, by virtue of which the present

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