fendant in an action by an administrator need not aver presentation of a set-off. Nor, in New Jersey, need an assignee, whose assignor presented the claim, again present it.2 In Arkansas a plaintiff seeking to foreclose a mortgage or vendor's lien need not present the same for allowance.3 In Idaho it has been held that when the United States comes into court seeking to enforce a claim against an estate, it is subject to the same statutory requirements as individuals and must present its claim. The non-presentation of a claim only defeats the present right to If the plaintiff has failed in his action by reason of such non-presentation, the claim may be presented if within the statutory time, and if rejected, a new suit instituted which will not be barred by the former judgment.5 recover. § 430. Allowance and Rejection of Claims.-An allowance of a claim by one executor is sufficient to bind the estate. Such allowance must be made in writing; a verbal allowance gives the claimant no cause of action. After allowance by the executor or administrator, and approval by the judge, the claim has the force and effect of a judgment against the estate, and is payable in due course of administration.8 The presentation of a claim to the executor or administrator is the commencement of a suit upon it, and stops the running of the statute of limitations. And where the executor neglects to indorse his allowance or rejection for more than ten days, the law presumes that the claim was rejected on the expiration of the tenth day.10 The claimant of a rejected claim, in recovering judgment thereon is entitled to interest from the time of presentment.11 § 431. Presentation of Claim Secured by Mortgage -In California.-The statutes of California regulating the presentation of claims secured by mortgage or other lien have been frequently changed. The decisions of the courts in that state, unless interpreted with reference to the provisions of the particular statute applicable thereto, would seem in irreconcilable conflict. Under the original sections of the act to regulate the estates of deceased persons, the requirement that all claims 1 Lay, Adm'r etc. v. Mechanics' Bank, 61 Mo. 72. 2 Ryan v. Flanagan, Adm'x, 38 N. J. L. 161. 3 Allen v. Smith. 29 Ark. 74; Simms v. Richardson, 32 Id. 297; McClure v. Owens, 32 Id. 443. United States v. Hailey, 2 West Coast Rep. 324. Hentsch v. Porter, 10 Cal. 560. 6 Willis v. Farley, 24 Cal. 490. ESTLE, VOL. I-16 Pitte v. Shipley, 46 Cal. 154. 8 Estate of Cook, 14 Cal. 129; Deck's Estate v. Gherke, 6 Id. 656; Estate of Hidden, 23 Id. 363: Magraw v. McGlynn, 26 Id. 420; Pico v. De la Guerra, 18 Id. 422; McKinney v. Davis, 6 Mo. 501; Kennerly v. Shepley, 15 Id. 640. 9 Beckett v. Selover, 7 Cal. 215. must be presented for allowance or rejection before any action could be maintained thereon was held broad enough to include claims secured by mortgage. Such continued to be the law on this subject until the adoption of the code of civil procedure in 1873. By sections 1493 and 1500 thereof it was rendered unnecessary for the holder of a mortgage or other lien to present the same to the representative of the estate. In 1874 these sections were amended so as to render such presentation necessary. In 1876 these sections were again amended so as to make a presentation unnecessary. Section 1500, after providing that no holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator, contains the following provision: "An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against any other property of the estate is expressly waived in the complaint; but no counsel fees shall be recovered in such action unless such claim be so presented." These sections as amended in 1876 continue to be the law in California, and render it unnecessary for a pledgee to present his claim to the representative of the pledgor, unless he seeks recourse against other property of the estate than that pledged.3 And in construing the amendments of 1874 repealing the provision authorizing actions upon mortgages to be maintained against the property of the estate of a deceased mortgagor, without presentation, it has been held that the same are not retroactive, and do not give to a notice to creditors previously published, any effect which it did not have under the law under which it was published; and that a mortgage falling due after the amendment was not barred by a failure to present the claim.4 If, however, the mortgage or other lien is on the homestead, the claim must be presented for allowance, as section 1475 of the code of civil procedure requires such presentation, and section 1500 will be construed so as to give it effect.5 But where a debtor, before his decease, conveys land to a person in trust, to secure his promissory note, and after his decease the creditor fails to present his claim to the executor or administrator within the time fixed by the statute after publication of notice to cred 1 Probate Act, secs. 130, 136; Ellissen v. Halleck, 6 Cal. 386; Pico v. De la Guerra, 18 Id. 428; Fallon v. Butler, 21 Id. 32; Willis v. Farley, 24 Id. 490; Ellis v. Polhemus, 27 Id. 350; Pitte v. Shipley, 46 Id. 160; Marsh v. Dooley, 52 Id. 232. 2 Hibernia Savings etc. Soc. v. Jordan, 5 Pac. C. L. J. 381. 3 Estate of Kibbe, 57 Cal. 407. Hibernia S. & L. Soc. v. Hayes, 56 Cal. 297. 5 Camp v. Grider, 62 Cal. 20 itors, the executor can not invoke the power of a court of equity to compel the surrender of the security, or to enjoin the creditors from selling the land under the power contained in the deed of trust. This rule is based upon the well-known doctrines that statutes of limitations do not destroy the right of action, but merely bar the remedy, and that he who seeks equity must do equity. § 432. Allegation of Presentation, and Rejection of Claim. Where the statute provides that claims must be presented for allowance, and rejected before action can be maintained thereon, all the facts necessary to show a valid presentation and rejection, with the dates on which they severally occurred, must be alleged. It is well also to attach to and make part of the complaint a copy of the claim as presented, that the court may judge of its legal sufficiency.2 § 433. Forms of Complaints-Description of PartyCapacity-Promise.-In an action against executors for a legacy, plaintiff must aver and prove existing assets.3 A legatee who has been represented by counsel at the allowance of accounts against the estate, will not be allowed, after a lapse of time, to come in and have the allowance set aside on a mere general averment of newly discovered evidence. In such a case it is not sufficient to allege ignorance at the time of allowance, but the plaintiff must go further, and show that he could not, with the use of due diligence on his part, have made himself acquainted with, or ascertained the existence of the facts. A declaration on a promise made by the defendant as administrator must aver assets in order to charge him personally de bonis propriis.5 In Louisiana, an action brought by a creditor of a testator against his executor, charging him with a devastavit, without averring proceedings to compel the defendant to exhibit a table of distribution, can not be maintained. A complaint against 1 Whitmore v. San Francisco Savings Union, 50 Cal. 145. See also Sichel v. Carrillo, 42 Id. 493. 2 Ellissen v. Halleck, 6 Cal. 393; Falkner v. Folsom, Id. 412; Hentsch v. Porter, 10 Id. 558; Fallon v. Butler, 21 Id. 24; Ellis v. Polhemus, 27 Id. 354; Benedict v. Haggin, 2 Id. 386; Janin v. Browne, 59 Id. 37. In this latter case, a complaint that alleged that the claim sued upon was presented to the administrator within the time limited in the notice to creditors, and a copy of the claim presented, with the verification annexed, together with the indorsements executors seeking to charge them in their representative capacity can not be sustained on demurrer, if the facts alleged show only a personal liability on their part. If the defendant is described in the caption of the complaint as administrator, it is immaterial so long as the facts stated in the body of the complaint show he is not sought to be charged as administrator. In an action against executors, plaintiff may, to save the statute of limitations, lay the promise as made by the representative.3 A complaint which alleges a promise by deceased, and also a promise by his administrators, though informal, is not bad on general demurrer, if it appears that defendants are charged in their representative capacity. Where the complaint did not state that the promises were made in the testator's lifetime, nor to him, nor for an indebtedness to him, nor to them as administrators, the action is in their individual and not in their representative capacity.5 § 434. Torts, Actions of.-No action can be sustained against an executor or administrator as such on a penal statute; nor when the cause of action is founded upon any malfeasance or misfeasance, is a tort, or arises ex delicto, such as trespass, false imprisonment, assault and battery, slander, deceit, diverting a watercourse, etc., when the complaint imputes a tort done to the person or goods of another by the testator or intestate.6 § 435. Administrator with Will Annexed.—If the testator appoints an executor of his will, and the executor dies, and an administrator with the will annexed is appointed, the administrator with the will annexed, under the statutes of California, possesses all the powers conferred on the executor named in the will, and can sell the land devised if the executor could have sold it.7 § 436. Action for Use and Occupation against Executor. At the common law an executor has constructive possession of the decedent's goods from the time of his death, and may declare on his own possession "as executor," although in fact he never has had possession. Under the laws of California an administrator is vested with the right to the possession of the real estate of his intestate as well as to the personal prop 1 Bartlett v. Hatch, 17 Abb. Pr. 461. 2 People v. Houghtaling, 7 Cal. 850. 3 Whitaker v. Whitaker, 6 Johns. 112; Carter v. Phelps, 8 Id. 440. Curtis v. Bowrie, Adm'rs of, 2 McLean, 374. 5 Worden v. Worthington, 2 Barb. 368; see Merritt v. Seaman, 6 N. Y. 168. 63 Williams on Ex., pp. 1728, 1729; People v. Gibbs, 9 Wend. 29; Eustace V. Jahns, 38 Cal. 3. 436. Kidwell v. Brummagim, 32 Cal. erty; and his duties and liabilities in respect thereto are therefore of the same general character. If the administrator occupies and uses premises belonging to his estate, he becomes at least the tenant of the estate, liable in any event for the value of its use and occupation; and if he makes a profit, he becomes liable for that also, at the election of the parties in interest; such is the law of his relation. If in this case the administrator sustains a loss, the loss is his, and the hardship is no greater than a like result in the case of any other tenant.1 CHAPTER V. HUSBAND AND WIFE. § 437. Against Husband for Necessaries Furnished to Defendant's Family, without his Express Request, at a Reasonable Price. [TITLE.] Form No. 93. The plaintiff complains, and alleges: I. That on the day of............, 18..., at ..........., he furnished to Mary Smith, the wife of defendant, at her request, sundry articles of [food or clothing, etc.], to wit: II. That the same were necessary to her maintenance, and suitable to her station in life. III. That the same were reasonably worth ........................... dollars. IV. That the defendant has not paid the same, nor any part thereof. [DEMAND OF JUDGMENT.] § 438. Against Husband for Goods Furnished, to Wife. To sue a husband for goods furnished to his wife, it should be alleged that the goods were sold and delivered to him. If she were authorized by the relationship, the nature and character of the goods, and his circumstances to buy them, they were in law sold to him; and averring they were sold to her states no cause against him, and such averments may be omitted as mere evidence and not ultimate facts.2 § 439. The Same-Husband, when Liable.-If a husband fails or refuses to provide a support for his wife, the law authorizes her to purchase from others on the credit of her husband, whatever is necessary for her maintenance, and suitable 1 Walls v. Walker, 37 Cal. 424. Jacobs v. Scott, 53 Cal. 74. |