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In re the Estate of Loshe

In the Matter of the ESTATE OF H. LOSHE

In re the Estate of Loshe, 62 Cal. 413 (1882)
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Court
California Supreme Court · State Highest Courts
Decided
December 20, 1882
Docket
No. 8,466
Judges
Myrick
Citations
62 Cal. 4131882 Cal. LEXIS 754
Headnotes
Burden of Proof on Contest of Claim Allowed against Estate— Estates of Deceased Persons—Contest of Claim—Account of Executor or Administrator—Burden of Proof—Evidence..—Under Section 1497, C. C. P., a claim which has been duly allowed, approved, and filed against the estate of a decedent is ranked among the acknowledged debts of the estate, to be paid in due course of administration, and in the event thereafter of a contest as to such claim arising in the course of administration, the burden of proof is on the contestant of such claim.
Summary
Appear by the claimant, John Ziegenbein, from the order or judgment of the Superior Court of the County of Placer, disallowing his claim, and also from the order of said Court denying a motion for a new trial. Myres, J. Contest of a claim on settlement of account of executor. The facts are stated in the opinion of the Court.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Myrick

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Myrick, J.:

In due time J. Ziegenbein presented in due form to the executor a claim against the above estate for $18,628.35. The executor indorsed upon the claim his allowance thereof at the sum of $18,548.35, rejecting an item of $80. The Judge of the Superior Court indorsed on the claim his approval of the allowance of the executor. The executor having filed his account and report of his administration, A. H. Gates and others, creditors of the estate, contested the account, and excepted thereto, especially the claim of Ziegenbein, and stated in writing their grounds of contest. A day for hearing the contest was set. At the hearing, the Judge of the Court below “ruled that the affirmative of the issue lay with the parties who sought to sustain the report of the executor.”

This ruling was error. Section 1497, C. C. P., declares that a claim allowed and approved, and filed, shall be “ranked among the acknowledged debts of the estate, to be paid in due course of administration.” When a claim, in the course of allowance and approval, reaches the point that it is to rank among the acknowledged debts of the estate, we apprehend that the claimant may rest on that point until he be attacked.

There are at least two points in the administration of an estate at which an approved claim may be contested, viz., when application is made for the sale of property (C. C. P.,§ 1540), and when an account is rendered for settlement (id., § 1636); but, in making the contest, the contestant has the affirmative, and must show cause. It is not necessary to consider how far the allowance and approval of a claim resemble or give the effect of a judgment; it is sufficient to say that such a claim is to “rank among the acknowledged debts of the estate, to be paid in due course.” If it be an acknowledged debt, it is good until cause be shown.

Orders reversed and cause remanded for further- proceedings.

Shaepstein, J., and Morrison, O. J., concurred.

How later courts describe this case

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Cited by 12 cases

View all citing references →
1885–1886: 21893–1894: 11897–1898: 11905–1906: 11909–1910: 11919–1920: 11925–1926: 11939–1940: 11941–1942: 11955–1956: 218852026peak 1885 · 2

Relies on it most ⓘ

  1. In re Estate of Swain8 P. 497 (Cal. 1885)
  2. More v. Miller54 P. 148 (Cal. 1898)
  3. Estate of Roberts120 P.2d 933 (Cal. Ct. App. 1942)
  4. Shiels v. Nathan108 P. 34 (Cal. Ct. App. 1910)
  5. Estate of Parrott248 P. 248 (Cal. 1926)
  6. Dowd v. Estate of Dowd108 P.2d 287 (Idaho 1940) · Dissent

Most recent

  1. Estate of McMillin292 P.2d 881 (Cal. 1956)
  2. Winstanley v. Robinson292 P.2d 881 (Cal. 1956)
  3. Estate of Roberts120 P.2d 933 (Cal. Ct. App. 1942)
  4. Dowd v. Estate of Dowd108 P.2d 287 (Idaho 1940) · Dissent
  5. Estate of Parrott248 P. 248 (Cal. 1926)
  6. In re Jameson's Estate1919 OK 35, 182 P. 518

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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