In re Den

39 Cal. 70

• Court: California Supreme Court
• Decided: July 1, 1870
• Docket: No. 2,197
• Status: Published

Opinion

Wallace, J.,

delivered the opinion of the Court:

This is an .appeal prosecuted by the executors of the estate of the deceased from an order entered against them by the Probate Court of Santa Barbara County, directing them to pay a pro rata upon the'claims of the creditors of the estate, “in gold coin of the United States of America.”

The record does not disclose the particular cñaracter of the claims themselves, other than that they are ‘ ‘ approved and upon file,” nor does it appear that they were originally, in terms, made payable in any particular description of currency.

The basis of the order is, however, the allegation found in the petition of the creditors, that the appellants had in their hands, as executors, a large sum of money in gold coin— assets of the estate—which it was their duty to apply to the payment of the claims of the petitioners.

If this averment had been proven, then the order in question would have been proper, upon the authority of Magraw v. McGlynn (26 Cal. 421.)

. But the executors denied the allegation, and on the hearing it appeared that they had not, in fact, received any of the assets of the estate in gold coin, but that the lands mentioned in the petition as having been sold by them for gold coin had, in fact, been sold for legal tender notes, and payment therefor made to them in that character of money only.

The order appealed from is therefore modified by striking out the words, “ said payment to be made in gold coin of the United States of America. ”

Sprague, J., expressed no opinion.