65 Cal. 322, 6,976, Lyon v. Petty

Docket Nº:6,976
Citation:65 Cal. 322, 4 P. 103
Opinion Judge:McKEE, Judge
Party Name:L. E. LYON, ADMINISTRATOR OF THE ESTATE OF KATE RODGERS, DECEASED, APPELLANT, v. JOHN PETTY ET AL., RESPONDENTS
Attorney:J. H. & J. E. Budd, and James H. Budd, for Appellant. Byers & Elliott, for Respondents.
Judge Panel:ROSS, J., and McKINSTRY, J., concurred.
Case Date:June 06, 1884
Court:Supreme Court of California
 
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Page 322

65 Cal. 322

4 P. 103

L. E. LYON, ADMINISTRATOR OF THE ESTATE OF KATE RODGERS, DECEASED, APPELLANT,

v.

JOHN PETTY ET AL., RESPONDENTS

No. 6,976

Supreme Court of California Department One

June 6, 1884

APPEAL from a judgment of the late Fifth Judicial District, San Joaquin County.

COUNSEL:

J. H. & J. E. Budd, and James H. Budd, for Appellant.

Byers & Elliott, for Respondents.

OPINION

McKEE, Judge

Page 323

The facts are stated in the opinion of the court.

On February 27, 1876, Kate Rodgers died intestate. At the time of her death she was owner and holder of a promissory note for three thousand dollars, dated December 20, 1875, and due and payable, with interest at ten per cent per annum, two years after date; payment of which was secured by mortgage upon real estate.

The note matured December 20, 1877, nearly twenty months after the death of its owner and holder; and the administrator of her estate, on March 29, 1879, commenced the action in hand for foreclosure of the mortgage to satisfy the same.

To the complaint in the action the defendant answered that, at the death of said intestate, he was the owner and holder of four promissory notes against her -- one for the sum of two thousand dollars, due and payable January 13, 1875; another for the sum of one hundred and ninety-two dollars, due and payable May 1, 1875; another for the sum of one hundred and eighty dollars, due and payable August 1, 1875; and the fourth for the sum of three hundred dollars, due and payable February 18, 1876; each bearing interest at the rate of one per cent per month from maturity until paid, except the note of two thousand dollars, which bore interest at the rate of one and a quarter per cent per month from its date, payable semi-annually, and he asked as relief that the said notes, as they existed on the day of her death, be set-off against his note in suit, and that the two demands be compensated.

Page 324

The defense invoked by the answer is not founded upon the notes as claims against the estate; they have never been presented to the administrator of the estate for allowance or rejection, as required by law for payment of debts due by the estate in the course of administration. But the right asserted is this: That the notes constituted [4 P. 104] demands against the intestate on the day of her death; and that...

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