Wallace v. Grant

Citations

• 27 Wash. 130
• 67 P. 578
• 1902 Wash. LEXIS 372

Syllabus

<p>EXECUTORS AND ADMINISTRATORS — MORTGAGE OE REAL ESTATE — SUEEIOIENOr 03P SHOWING MADE.</p> <p>Under Bal. Code, § 6257, which provides that “when the personal estate in the hands of the executor or administrator shall be insufficient to pay the allowance to the family and all the debts and charges of the administration, the executor or administrator may sell or mortgage the real estate for that purpose, upon the order of the court,” an order of the court authorizing an administrator to mortgage real estate is void, when based upon a petition by the administrator showing affirmatively that the personal property of the estate has not been exhausted, but merely that “petitioner has sold all the personal property of said estate that in his judgment is advisable to sell at the present time.”</p> <p>SAME-ILLEGALITY OE MORTGAGE-ESTOPPEL.</p> <p>In an action to foreclose a mortgage given by the administrator of an estate, defendants are not estopped from pleading the illegality of the mortgage by reason of the estate’s having had the benefit of the money loaned, when there is no showing in the record as to what was done with the money by the administrator, the burden being upon the mortgagee to show that the estate was actually the recipient of the money loaned.</p>