HENRY S. MAGRAW v. JOHN A. McGLYNN, 26 Cal. 420

By the Court, Currey, J. The executor of the last will and testament of the Honorable David C. Broderick, deceased, has appealed to this Court from an order and decree of the Probate Court of the City and County of San Francisco, requiring him to pay, in gold coin of the United States, the amount of a debt due the plaintiff from the estate of the deceased.

Upon the petition of the plaintiff the executor was directed by an order of the Probate Court to render a full account and report of his administration, showing- the amount of debts and liabilities approved, and allowed against the estate of the deceased; the expenses and charges of administration; the amount of all sales of real and personal property made by him, and the amount of moneys received, specifying the times when received and the kind of currency and coin received therefor by him; and it was further ordered that upon the coming in of the account and report the executor and the legatees, devisees and all persons interested in the estate of the deceased, should show cause why an order should not be made that all of the debts of the estate be paid.

The executor appeared in obedience to this order and rendered his account, showing the amount of money received, and also the amount paid out, leaving in his hands a large sum of money belonging to the estate.

The account so rendered did not specify the kind of money received by the executor, and for this reason the plaintiff, as a creditor of the estate, excepted to the account as insufficient, and objected to its allowance by the Court until the kind of money, which he alleged was gold coin, was specified and disclosed by the executor; and in conclusion, the plaintiff prayed the Court that the executor might be ordered and decreed to pay the debt due him in current gold coin of the United States.

To the exceptions and objections so made the executor answered that his account was in all respects full and complete, and submitted that the creditor’s exceptions and objections were insufficient in law and should be denied and disallowed; and he also, on his part, objected that the Court had no jurisdiction or legal authority to require a specification of the kind of money which he had received on account of the estate.

The executor, for further answer to the objections and exceptions of the plaintiff, alleged that the debt due him had been tendered to him in lawful money of the United States at the Chemical Bank in the City of Uew York, where the promissory note on which the same was due was made payable, and that the same was refused by the plaintiff; and he further averred that -the money remained deposited at said bank subject to the plaintiff’s order, as the amount due him.

The Court overruled the answer and sustained the exceptions and objections of the plaintiff, and made an order directing the executor to file an amended account on or before a day specified. The executor obeyed the order of the Court and filed an amended account showing that the money received by him as well as that disbursed was all of the description and kind of money designated as United States gold coin; whereupon the Court, by an order, allowed the account as amended, and directed and decreed that the executor pay the debt due the plaintiff in United States gold coin.

The executor duly excepted to the rulings of the Court adverse to him, and on appeal assigns as error the orders and decree of the Probate Court requiring him to set forth and show the kind of currency in which the funds referred to in his account were received, and also the decree requiring the payment to the plaintiff to be made in gold coin of the United States. The debt due the plaintiff was the balance of a promissory note made and delivered by the appellant’s testator at the City of New York on the first day of July, 1858, payable ten months after date at the Chemical Bank in that city.

The tender is alleged to have been made in lawful money of the United States, which it is also alleged was then the usual circulating medium in the City of Hew York, and was then and there receivable in payment and satisfaction generally of all debts and liabilities existing between private persons.

This answer does not disclose what particular kind of money—that is, whether gold coin or United States treasury notes—was tendered; and as gold coin of the United States and United States treasury notes were both at the time lawful money of the United States, we are left in igtiorance by the answer as to which of these kinds of money was tendered; and unless either kind would have constituted a valid tender in the payment of the debt due, we must hold the plea of tender insufficient.

This point, then, must be postponed as dependent upon the solution of the principal question in the case, which is as to the obligation of the executor to pay the plaintiff’s debt in the kind of currency which he received for the property of the estate, and which he had in his custody and keeping when the order and decree was made. An executor holds the property of his testator in trust for the payment of debts and legacies, and for the application of the surplus according to the will of the testator.

He has only a qualified property in the assets of the estate of the testator, under a trust to apply the same to the payment of the testator’s debts, and such other purposes as he ought to fulfil in his office as executor. (Fair v. Newman, 4 Term R. 645; Tiffany and Bullard on Trusts and Trustees, 483.) By the statute of this State an executor is not permitted to make profit by the increase, nor to suffer loss by the decrease or destruction of any part of the estate, without his fault. (Probate Act,

Section 217.) The money collected by the executor upon the sale of the property of the estate of the testator, was received and held by him in a fiduciary capacity for the use of the creditors of the estate, and others interested therein as beneficiaries under the will, and it was his duty to retain in his hands the money thus received until it could be applied and distributed in the order and mode provided by law. .

The executor was required to render a full account of his administration, and the authority of the Probate Court to enforce obedience to such an order is not doubted. (Probate Act, Sections 227, 228.) The account which an executor or administrator is required to render in such a case must, among other things, show what is the amount of money in his hands belonging to the estate, and if it be a matter of interest to those beneficially concerned, we deem it competent for the Court to require a specification of the kind of money received, for it is the money received by him on behalf of the estate which the creditors, legatees and distributees, as the case may be, are entitled to ha,ve.

It is said the allowance of a claim by an executor and the Probate Judge amounts to a judgment, and then it is argued that as the claim of the plaintiff in this case had been allowed, and passed into judgment, the judgment was payable in any lawful currency of the United States; and in the same connection, it is insisted that it was not competent for the Probate Court, by a proceeding long subsequent, to add to the judgment a clause requiring it to be paid in gold coin of the United States; and the question is propounded, how can a Court of limited and special jurisdiction add to a general judgment at a term subsequent to its rendition, when a Court of general jurisdiction could not do

an act of the kind ? This argument is not without logical force, and were the premises upon which it necessarily proceeds admitted, it would not be easy, if it were possible, to avoid the conclusion that the Court erred in its decree requiring the executor to pay the plaintiff the amount due him in gold coin. But did the allowance of the claim of the plaintiff by the executor and Probate Judge constitute it a debt in judgment, in a general sense? In Neill v.

Hodge, 5 Texas, 489, the Court said: “ The approval of the account after it had been admitted by the administrator, was a judicial act; a quasi judgment; and so far affected the rights of the parties as to prevent any further investigation in that Court. If it had not been approved, the creditor could have sued for his demand in the District Court, and obtained judgment; he could not, however, have had an execution.

It would have been certified to the Probate Court to be paid by the administrator, in the due course of administration.” In a number of cases decided by the Supreme Court of Texas, arising under a statute substantially like our own, it has been held that the approval of a creditor’s claim by the Probate Judge is a judgment upon the claim, and cannot, so far as the creditor may be concerned, be questioned at a subsequent term of the same Court. (Swenson v. Walker, 3 Texas, 96; Neill v. Hodge, 5 Id. 487; Finley v. Carothers, 9 Id. 518.) In the case of Deck's Estates v.

Gherke, 6 Cal. 669, the Supreme Court of this State held that, by our probate law, claims against an estate, which have been allowed by the administrator and the Probate Judge, have the force and effect of judgments. Neither the Supreme Court of Texas nor our own have ever held, as we are aware, that the allowance of a creditor’s claim by the Probate Judge is anything more than a mere judicial determination of the estate’s indebtedness in a specified sum to a particular person.

When a given claim is allowed and it thus becomes judicially determined as a debt due the creditor, it thereby gains no preference over any other claim of the same class which may be allowed by the executor and approved by the Judge at a subsequent date. Claims so allowed and approved pass into judgments of a qualified character only. The amount due and to whom due is the substantive matter ascertained and determined. It is a judgment to this extent only.

By the act of allowance and approval the claim is placed among the acknowledged debts of the estate; but before payment can be enforced it is necessary to obtain a decree of the Probate Court for that purpose; and when such judgment or decree is made, the executor must pay the creditor as directed. (Probate Act, Sections 243, 245.) The decree so made is a judicial determination of the rights of the parties, and possesses all the elements of a final judgment. (Estate of Martin E. Cook, 14 Cal. 130.) This decree determines the amount to be paid.

This amount is ascertained by reference to the money of the estate in the hands of the executor. If there be sufficient in his hands for the payment in full of the creditor’s demand, or only enough to pay a proportionate dividend, the decree is made according to the truth of the case, and the executor is required to make payment as directed by the decree from the money of the estate in his hands or presumed to be there. In this case the money in the hands of the executor was gold coin of the United States, and the decree requires this kind of money to be paid to the creditor.

This decree is in consonance with justice, and in our judgment is authorized by the law of the land. If there was any doubt as to the power of the Probate Court, under the law as it exists, independently of the Act of 1863, called the “ Specific Contract Law” (Laws 1863, p. 687), then that Act, as it seems to us, has relieved the subject of all embarrassment. The second

section of the Act referred to provides that “in an action against any person for the recovery of money received by such person in a fiduciary capacity, or to the use of another, judgment for the plaintiff, whether the same be by default or after verdict, may be made payable in the same kind of money or currency so received by such person.” The next

section provides for enforcing by execution the payment of the judgment according to its terms. By the two hundred and forty-fifth

section of the Probate Act, it is enacted that “ whenever a decree shall be made by the Probate Court for the payment of creditors, the executor or administrator shall be personally liable to each creditor for his claim or the dividend thereon, and execution may be issued on such decree, as upon a judgment in the District Court, in favor of each creditor, and the same proceedings may be had under such execution as if it had been issued from the District Court.” The proceedings instituted by the plaintiff, as a creditor of the estate of the deceased, against the executor, was in the nature of an action for the recovery of the money which he had in his hands in a fiduciary capacity, and to which the plaintiff was entitled to the extent of his demand.

The decree made upon the issue joined between the parties was a judgment against the appellant as the executor of the estate, and in order to render it at once effectual against him individually the statute has declared that he shall be personally liable for the payment decreed to be made.

The conclusion to which we come is that the appellant as the executor of the last will and testament of the 'deceased received the money of the estate collected by him in a fiduciary capacity and as the trustee for the creditors, and for the. legatees or distributees under the will, and the same held in his possession to be paid out and distributed under the direction of the Probate Court, in the mode provided and required by the law; and that the proceedings had in the Probate Court to that end was in accordance with the law in its letter and spirit; and we also hold the executor’s plea of a tender to the plaintiff of the sum due him in lawful money of the United States to be insufficient; because, by the laws of the United States, there was at the time of the alleged tender more than one kind of lawful money of the United States, one of which kinds in particular the plaintiff was entitled to have in payment of the amount due him.

The answer does not show that this particular kind of money was tendered, and therefore tile tender as pleaded must be deemed insufficient. The decree is affirmed.