Ham v. Henderson

50 Cal. 367

• Court: California Supreme Court
• Decided: July 1, 1875
• Docket: No. 4132
• Status: Published

Opinion

By the Court

1. The death of Sturgeon, the judgment debtor, had the effect, in law, to dissolve the attachment. (Ham v. Cunningham, ante, p. 365.)

2. The right of the plaintiff to the possession of the personal estate of the deceased, took effect by relation as of the date of the death of the intestate. “He is deemed in law from that time to have the possession, or to be entitled to the possession of the personal property, as the ease may require. The administrator may, therefore, institute an action in the nature of the action of trover, in his own name—his special property being sufficient for that purpose—against a person who, after the death of the deceased, and before the issuing of the letters of administration, converts to his own use the personal property of the estate of the deceased. His right of action in such cases is the same as in case of a conversion after his appointment as administrator.” (Johns v. Nolting, 29 Cal. 511.) The taking of the property by the defendant having been tortious, no demand by the plaintiff previous to the commencement of the action was necessary.

3. The complaint is good. The averment that “said estate was the owner and possessed ” the property, is equivalent to an averment that the plaintiff, as administrator, was the owner in possession.

Judgment affirmed.