The record-union., 1891-01-19
For respondents. Trippett .& Neale, Hun
saker, Britt g. Goodrich.
DEF, I,rrAI IrN,r ONE

ESTATE OF CoUTS. deceased.-No. 13, ,995.
On May 80, 1889, the executrix filed an
account of her administration of the estate
from January 30, 1887, 10 February 1, 1889,
which set forth among other items of the
same nature, claim OF 81 ,240 81 against the
executrix by Cave ]. Couts, for services,
charges against said estdte'' she asked the
court to determine ON the settlement Of the
account After due notice a hearing was had
and the account was settled. With respect to
the item referred to, the court found that il
was legal charge against the estate, and au-
thorized the executrix to pay Couts out of any
moneys that might thereafter come into her
hands as executrix. On March 3, 1890, Couts
filed a petition asking for an order requiring
the eXecntriX to sell SO much of the real es-
tate as should be necessary to pay his claim.
An order to show cause was issued, and at the
trial the petitioner introduced evidence tend
ing to support every material allegation of his
petition, but on motion of the devisees a nom
suit was granted, and the proceeding dis
missed. From this order petitioner has APP
pealed.
1t is admitted that the court in its decree
settling the account made the order referred
to, and that the eXecutriX has not paid, and
has not funds in her hands sufficient to pay
petitioner the amount allowed, but 1t is
claimed that the non-suit and dismissal were
proper because the order of the court allowing
Couts 81 ,240 81 is void; that his claim, if any
he had, was against the executrix, and until
she pays it and presents tin her account as
an expense OF administration, the court can
not act upon ii; tDat the claim is barred by
the statute of limitations, but if the appellant
has any remedy at all, it is by execution
against the eXecutriX under section 164T,
Code Civil of Procedure.
We think that the petition states facts suf-
tclent, and that upon the evidence Offered by
petitioner the motion for non-suit should have
been denied.
Section 1896, Code of Civil Procedure, pro-
vides that: ..When sale of property of the
estate is necessary TO pay the debts
outstanding against the decedent, or the debts,
expenses or charges Of administration, the eX-
ls,Tff rrolgf ...l1 II
sonal property of the estate for that purpose
upon the order of the Court" and Section
1545 provides that: "If the executor ad-
minlstrator neglect to apply for an order of
sale when it is necessary any person may
make application therefor in the same man.
ner as the executor or administrator, 3
and the decree of sale must fix the period of
time within which the executor or admins
traitor must make the safe" These provisions
were intended to afford creditors of the eX-
ecrtorS, as well rs creditors of the decedent,
the means of securing payment of their
claims against the estate, and necessarily con-
template expenses of administration which
the executor neglecJS or refuses to pay.
There is nothing i'll the statutes which re-
quires payment of claims against the executor
for services rendered, or materials furnished
the estate during administration before they
can be allowed in the settlement of his ac-
count. 1t would bea misfortune il there were.
Where the representative of the estate has a
doubt as to the legality of the claim, or the
amount that should be paid for services rem
dered, or materials furnished in the course of
administration, it is proper for his own pro-
lection, as well as for the protection of the
heirs, that the court should determine after
notice to all persons interested, whether the
estate is liable ut all, and ii so, in what
amount. (Dwinelie VS.. HenriqueZ, l Cal. 392;
Gurnee VS.. Maloney, IS Id. SSl
The order settling the account was appeal
able, and the allowance OF the claim is conclu-
sive against every one interested, except those
laboring under disability. iSections 1637-3S
G. C. p: Decks Estate, Cal. 500; Estate of
Stott, 52 I'd. 1867
The order appealed from is reversed, and the
proceeding is remanded for q new trial.
PATERSON, j.
We concur:
HARRISON, J.
GARoUrrE, j.