Estate of Sweigert

1 Myrick 152

• Court: Superior Court of California, County of San Francisco
• Decided: April 26, 1878
• Docket: No. 6484
• Status: Published

Opinion

The account has been settled, showing a balance due the executor of $1,700. There is no personal property remaining; there is real estate, but the parties in interest do not desire to make a sale if it can be avoided. The heirs are, the widow and a minor child under guardianship. The executor asks that the estate be distributed, subject to a lien upon each share for its proportion of the amount due the executor. The widow consents, and the guardian of the infant is ready to consent.

By the Court:

The guardian cannot consent. He can-

not mortgage or create a lien directly; he cannot do indirectly what he cannot do directly. The object of administration is to pay the debts and expenses, and distribute the residue. The executor must, before distribution, pay all balances or discharge them. If the distributees were all adults, they could consent, and estop themselves from afterwards denying it—but the guardian cannot consent. This Court has no power to create the lien asked for upon the minor’s share.

Application denied.