Estate of Eidenmuller

1 Myrick 87

• Court: Superior Court of California, County of San Francisco
• Decided: March 25, 1875
• Docket: No. 4296
• Status: Published

Opinion

Eillip & Co., livery men, had a bill against deceased, for care of horses, shoeing, repairs to buggy, &c., but presented no claim, insisting upon their lien on the property. The administrator, under an order of sale, sold the property for $375, and paid out of that the amount of Killip & Co.’s bill, $288.25, and returned the same in his account, which is now for settlement. The item is objected to.

Mr. Houghton:

The administrator could not pay the bill without its being presented as a claim. 46 Cal., 158; same, 232.

Mr. Reynolds:

These cases are not in point; they refer to cases where the creditors are the moving parties. Stat. 1869-70, p. 723.

By the Court:

Where property is pledged by the deceased, and the creditor omits to present the debt as a claim, the administrator may pay the debt and redeem the property, and he will be protected if the property shall sell for enough to pay the debt or reimburse the estate. In making the payment he cannot deplete the estate; he takes the risk that the property will sell for or will be of the value of the amount paid. If he desires not to take such risk, he may sell subject to the lien.

The amount paid is allowed as a credit to the administrator.