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ESTATE OF GEORGE EIDENMULLER.

 

No. 4296--March 25, 1875.

 

PRESENTATION OF CLAIM.--PAYMENT OF DEBT SECURED BY PLEDGE WITHOUT ALLOWANCE.

 

An administrator who is willing to assume the risk that the debt will not exceed the value of the pledge may redeem the property without waiting for a claim to be presented.

 

Construing sections, C. C. P., 1493, 1513.

 

Barstow, Stetson & Houghton, for minor heirs.

 

Leonard Reynolds, for Administrator.

 

Killip & Co., livery men, had a bill against deceased, for care of horses, shoeing, repairs to buggy, &c., but presented no claim, insisting upon their lien on the property.The administrator, under an order of sale, sold the property for $375, and paid out of that the amount of Killip & Co.ís bill, $288.25, and returned the same in his account, which is now for settlement.The item is objected to.

 

†††† Mr. HOUGHTON:The administrator could not pay the bill without its being presented as a claim.46 Cal., 158; same, 232.

 

†††† Mr. REYNOLDS:These cases are not in point; they refer to cases where the creditors are the moving parties.Stat. 1869-70, p. 723.

 

†††† By the COURT:Where property is pledged by the deceased, and the creditor omits to present the debt as a claim, the administrator my pay the debt and redeem the property, and he will be protected if the property shall sell for enough to pay the debt or reimburse the estate.In making the payment he cannot deplete the estate; he takes the risk that the property will sell for or will be of the value of the amount paid.If he desires not to take such risk, he may sell subject to the lien.

†††† The amount paid is allowed as a credit to the administrator.

 

 

 

Transcribed by Pat Seabolt.


© 2007 Pat Seabolt.




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