In re the Estate of Loshe

California Supreme Court

In re the Estate of Loshe

62 Cal. 413, 1882 Cal. LEXIS 754

CourtCalifornia Supreme Court

DecidedDecember 20, 1882

DocketNo. 8,466

StatusPublished

Cited by13 cases

This text of 62 Cal. 413 (In re the Estate of Loshe) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Estate of Loshe, 62 Cal. 413, 1882 Cal. LEXIS 754 (Cal. 1882).

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Opinion

Myrick, J.:

In due time J. Ziegenbein presented in due form to the executor a claim against the above estate for $18,628.35. The executor indorsed upon the claim his allowance thereof at the sum of $18,548.35, rejecting an item of $80. The Judge of the Superior Court indorsed on the claim his approval of the allowance of the executor. The executor having filed his account and report of his administration, A. H. Gates and others, creditors of the estate, contested the account, and excepted thereto, especially the claim of Ziegenbein, and stated in writing their grounds of contest. A day for hearing the contest was set. At the hearing, the Judge of the Court below “ruled that the affirmative of the issue lay with the parties who sought to sustain the report of the executor.”

This ruling was error. Section 1497, C. C. P., declares that a claim allowed and approved, and filed, shall be “ranked among the acknowledged debts of the estate, to be paid in due course of administration.” When a claim, in the course of allowance and approval, reaches the point that it is to rank among the acknowledged debts of the estate, we apprehend that the claimant may rest on that point until he be attacked.

There are at least two points in the administration of an estate at which an approved claim may be contested, viz., when application is made for the sale of property (C. C. P.,§ 1540), and when an account is rendered for settlement (id., § 1636); but, in making the contest, the contestant has the affirmative, and must show cause. It is not necessary to consider how far the allowance and approval of a claim resemble or give the effect of a judgment; it is sufficient to say that such a claim is to “rank among the acknowledged debts of the estate, to be paid in due course.” If it be an acknowledged debt, it is good until cause be shown.

Orders reversed and cause remanded for further- proceedings.

Shaepstein, J., and Morrison, O. J., concurred.

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Myrick, J.:

In due time J. Ziegenbein presented in due form to the executor a claim against the above estate for $18,628.35. The executor indorsed upon the claim his allowance thereof at the sum of $18,548.35, rejecting an item of $80. The Judge of the Superior Court indorsed on the claim his approval of the allowance of the executor. The executor having filed his account and report of his administration, A. H. Gates and others, creditors of the estate, contested the account, and excepted thereto, especially the claim of Ziegenbein, and stated in writing their grounds of contest. A day for hearing the contest was set. At the hearing, the Judge of the Court below “ruled that the affirmative of the issue lay with the parties who sought to sustain the report of the executor.”

This ruling was error. Section 1497, C. C. P., declares that a claim allowed and approved, and filed, shall be “ranked among the acknowledged debts of the estate, to be paid in due course of administration.” When a claim, in the course of allowance and approval, reaches the point that it is to rank among the acknowledged debts of the estate, we apprehend that the claimant may rest on that point until he be attacked.

There are at least two points in the administration of an estate at which an approved claim may be contested, viz., when application is made for the sale of property (C. C. P.,§ 1540), and when an account is rendered for settlement (id., § 1636); but, in making the contest, the contestant has the affirmative, and must show cause. It is not necessary to consider how far the allowance and approval of a claim resemble or give the effect of a judgment; it is sufficient to say that such a claim is to “rank among the acknowledged debts of the estate, to be paid in due course.” If it be an acknowledged debt, it is good until cause be shown.

Orders reversed and cause remanded for further- proceedings.

Shaepstein, J., and Morrison, O. J., concurred.

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62 Cal. 413, 1882 Cal. LEXIS 754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-loshe-cal-1882.

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