Slater v. McAvoy

Citations

• 123 Cal. 437
• 56 P. 49
• 1899 Cal. LEXIS 1092

Syllabus

<p>Estates of Deceased Persons—Bond for Sale of Beal Estate—Death of Administrator—Action against Sureties.—Under section 1586 of the Code of Civil Procedure a subsequent administrator may bring an action against the sureties on the bond of a deceased administrator, given as a condition of exercising authority to sell the real estate of the decedent, where the deceased administrator, after having accounted to the court, showing an unexpended balance of the proceeds of sale, died leaving the same in his hands, and leaving the estate unadministered.</p> <p>Id.—Recovery of Balance Accounted for—Pleading—Accounting in Equity.—The complaint in such action cannot sustain a recovery against the sureties of the precise balance of the proceeds accounted for, if it does not allege that the account was final, or otherwise show that the sureties became liable for that precise sum, irrespective of the necessities of any further administration by the deceased administrator; but when the complaint shows that the deceased administrator remained accountable for that sum, and died without accounting for it, it shows jurisdiction in the court as a court of equity to compel an accounting.</p> <p>Id.—Parties to Accounting—Sureties—Representative of Deceased Administrator—Presumption.—The sureties on the bond of the deceased administrator for the sale of the real estate are proper parties to an accounting in equity for the proceeds of such sale; and where it does not appear that there was any administration of his estate, it must be presumed that he has no personal representative who needs to be joined as a party defendant, or who may be compelled to state an account with the estate represented by the deceased administrator.</p> <p>Id.—Action against Estate of Deceased Administrator not Required. No previous action against the estate of the deceased administrator is required as a condition of maintaining an action in equity for an accounting against the sureties upon his bond; and where