Fallon v. Butler

Citations

• 21 Cal. 24

Syllabus

<p>Asr action may be maintained in the District Court against an executor or administrator, to foreclose a mortgage upon real estate executed by his testator or intestate, although the debt secured by the mortgage has been presented as a claim to the executor or administrator and allowed by him, and also by the Probate Judge of the county, where the only object of the action is to reach the property mortgaged and subject it to sale, and have the proceeds applied to the payment of the debt secured, and a judgment is not- asked against the general estate of the deceased for the debt or any part of it.</p> <p>The oases of Ellissen v. Hallech (6 Cal. 386) and Faulkner y. Folsom’s Executors (Id. 412) commented upon and overruled.</p> <p>The provision of the act regulating the settlement of the estates of deceased persons, declaring that no sale of any property of an estate shall be valid unless made upon an order of the Probate Court, applies only to sales by executors and administrators. It has no reference to judicial sales under the decrees of the District Courts, nor to sales in pursuance of testamentary authority.</p> <p>The term “ claims,” as used in the act, does not embrace mortgage liens, but has reference only to such debts or demands against the decedent as might have been enforced against him in his lifetime by personal actions for the recovery of money, and upon which only a money judgment could have been rendered.</p>