Beckett v. Selover

Citations

• 7 Cal. 215

Syllabus

<p>Upon an application to sell the real estate of a deceased person to pay debts, the heir may dispute the validity of the claims on which the petition is based, although they have been allowed by the public administrator and Probate Judge.</p> <p>A judgment at common law is not evidence in an action against the heir.</p> <p>Under our system, the petition to sell real estate is the substitute for the action against the heir. The latter must be cited, and has a right to be heard.</p> <p>This proceeding is a simple re-examination of the claim, to test its validity as against the heir.</p> <p>Where issue has been joined as to the truth of the claim, the creditor may have it tried before the Probate Judge, or certified to the District Court for trial before a jury.</p> <p>It seems, that all the provisions of the law relating to the powers and duties of the public administrator, and inconsistent with the general probate law, are special provisions, which must be given their full force.</p> <p>The public administrator is an officer of the law. He is entitled to the administration of all estates not otherwise administered, and he has only such powers as are given him by law.</p> <p>As he is required to give a bond, and take the official oath, it seems to have been the intention of the statute to dispense with the bond and oath required of other administrators in each particular case.</p> <p>Under the fourteenth chapter of the act concerning the estates of deceased persons, the public administrator has a right, and should at once take possession of the estate of all persons dying without known heirs. This is sustained by the eighty-eighth section of the act.</p> <p>In both cases he holds as special administrator, and subject to the direction of the Court.</p> <p>A petition for letters of administration to the Probate Court of a county, describing the deceased as late a resident of that county, would seem to conform to the words of the statute.</p> <p>The public administrato