§ 1500. Claims must be presented before suit. No holder of any claim against an estate shall maintain any action thereon, unless the claim is first presented to the execator or administrator, except in the following case: An action may be brought by any holder of a mortgage or lien to enforce the same against the property of the estate subject thereto, where all recourse against any other property of the estate is expressly waived in the complaint, but no counsel fees shall be recovered in such action unless such claim be so presented. En. March 11, 1872. Am'd. 1873-4, 366; 1875-6, 103.

Cal. Rep. Cit. 52, 235; 56, 299; 56, 302; 56, 303; 56, 304; 57, 408; 62, 26; 65, 575; 66, 531; 67, 180; 77, 56; 77, 187; 79, 10; 79, 12; 79, 410; 82, 99; 83, 443; 85, 443; 86, 327; 90, 395; 90, 396; 95, 167; 95, 437; 95, 438; 96, 469; 96, 473; 98, 486; 99, 507; 99, 508; 99, 509; 100, 553; 105, 47; 106, 204; 106, 205; 109, 67; 109, 68; 109, 69; 110, 83; 110, 338; 112, 78; 116, 357; 119, 66; 119, 67; 121, 656; 124, 231; 124, 574; 125, 361; 127, 54; 127, 192; 127, 277; 129, 478; 131, 673; 132, 602; 133, 95; 133, 98; 135, 352; 136, 13; 146, 656. Prob. Act, sec. 136. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448.

Cal. Rep. Cit. 6, 393; 18, 428; 21, 29; 24, 501.

With respect to encumbrances upon the homestead: See sec. 1475, ante.

1501. Time of limitation. The time during which there shall be a vacancy in the administration must not be included in any limitations herein prescribed. En. March 11, 1872.

Cal. Rep. Cit. 129, 478.

Prob. Act, sec. 137. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448.

If

§ 1502. Claims in action pending at time of decease. an action is pending against the decedent at the time of his death, the plaintiff must in like manner present his claim to the executor or administrator for allowance or rejection, authenticated as required in other cases; and no recovery shall be had in the action unless proof be made of the presentations required. En. March 11, 1872.

Cal. Rep. Cit. 52, 227; 79, 10; 79, 11; 89, 4; 95, 437; 95, 438; 99, 503; 99, 507; 99, 508; 99, 509; 106, 204; 107, 52; 107, 53; 123, 22; 123, 469; 129, 479; 133, 95; 133, 96; 133, 98.

Code Civil Proc.-36.

Prob. Act, sec. 138. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448.

Cal. Rep. Cit. 27, 355; 42, 132; 42, 134; 50, 42.

Effect of judgment against executor: Post, sec. 1504.

1503. Allowance of clalm in part. Whenever any claim is presented to an executor or administrator, or to a judge, and he is willing to allow the same in part, he must state in his indorsement the amount he is willing to allow. If the creditor refuse to accept the amount allowed in satisfaction of his claim, he shall recover no costs in any action therefor brought against the executor or administrator, unless he recover a greater amount than that offered to be allowed. En. March 11, 1872. Am'd. 1880, 91.

Cal. Rep. Cit. 85, 142; 112, 88.

Prob. Act, sec. 139. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448.

Cal. Rep. Cit. 9, 636; 21, 81.

A judg

1504. Effect of Judgment against executor. ment rendered against an executor or administrator, upon any claim for money against the estate of his testator or intestate, only establishes the claim in the same manner as if it had been allowed by the executor or administrator and the judge; and the judgment must be that the executor or administrator pay, in due course of administration, the amount ascertained to be due. A certified transcript of the original docket of the judgment must be filed among the papers of the estate in court. No execution must issue upon such judgment, nor shall it create any lien upon the property of the estate, or give to the judgment creditor any priority of payment. En. March 11, 1872. Am'd. 1880, 91.

Cal. Rep. Cit. 52, 227; 70, 185; 74, 567; 88, 647; 93, 17; 121, 638; 124, 222; 132, 511; 133, 301; 138, 804; 188, 305; 138, 306; 141, 16.

Prob. Act, sec. 140. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448.

Cal. Rep. Cit. 6, 413; 9, 127; 9, 136; 21, 30; 29, 363; 29, 366; 29, 368; 29, 373; 32, 397; 34, 226; 38, 87; 38, 378; 46, 315; 46, 317.

1505.

Execution not to Issue after death. If one is levied the property may be sold. When any judgment has

been rendered for or against the testator, intestate in his lifetime, no execution shall issue thereon after his death, except as provided in section six hundred and eighty-six, A judgment against the decedent for the recovery of money must be presented to the executor or administrator like any other claim. If execution is actually levied upon any property of the decedent before his death, the same may be sold for the satisfaction thereof; and the officer making the sale must account to the executor or administrator for any surplus in his hands. A judgment creditor having a judgment which was rendered against the testator or intestate in his lifetime, may redeem any real estate of the decedent from any sale under foreclosure or execution, in like manner and with like effect as if the judgment debtor were still living. En. March 11, 1872. Am'd. 1873-4, 413.

Cal. Rep. Cit. 65, 519; 86, 121; 86, 122; 99, 588; 124, 230; 138, 259; 138, 304; 138, 305; 138, 306.

Prob. Act, sec. 141. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 638.

Cal. Rep. Cit. 9, 127; 19, 100; 22, 99; 29, 373; 87, 148; 88, 378; 55, 579.

1506. What judgment is not a llen on real property of estate. A judgment rendered against a decedent, dying after verdict or decision on an issue of fact, but before judgment is rendered thereon, is not a lien on the real property of the decedent, but is payable in due course of administration. En. March 11, 1872.

Cal. Rep. Cit. 124, 230; 124, 232.

1507. May refer doubtful claims. Effect of referee's allowance or rejection. If the executor or administrator doubts the correctness of any claim presented to him, he may enter into an agreement, in writing, with the claimant, to refer the matter in controversy to some disinterested person, to be approved by the superior court, or a judge thereof. Upon filing the agreement and approval of such court or judge, in the office of the clerk of the court for the county in which the letters testamentary or of administration were granted, the clerk must enter a minute of the order referring the matter in controversy to the person so selected, or, if the parties consent, a reference may be had in the court; and the report of the referee, if confirmed, establishes or rejects the claim the same as if it

had been allowed or rejected by the executor or administrator and judge. En. March 11, 1872. Am'd. 1880, 91.

Cal. Rep. Cit. 69, 80; 104, 245.

Prob. Act, sec. 142. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 638.

§ 1508. Trial by referee, how confirmed and its effect. The referee must hear and determine the matter, and make his report thereon to the court in which his appointment is entered. The same proceedings shall be had in all respects, and the referee shall have the same powers, be entitled to the same compensation, and subject to the same control, as in other cases of reference. The court may remove the referee, appoint another in his place, set aside or confirm his report, and adjudge costs, as in actions against executors or administrators, and the judgment of the court thereon shall be as valid, and effectual, in all respects, as if the same had been rendered in a suit commenced by ordinary process. En. March 11, 1872.

Cal. Rep. Cit. 104, 246; 104, 247.

Prob. Act, sec. 143. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1861, 639.

Reference: Ante, secs. 638-645.

§ 1509. Liability of executor, etc., for costs. When a Judgment is recovered, with costs, against any executor or administrator, he shall be individually liable for such costs, but they must be allowed him in his administration accounts, unless it appears that the suit or proceeding in which the costs were taxed was prosecuted or defended without just cause. En. March 11, 1872.

Cal. Rep. Cit. 93, 572; 99, 479; 103, 258; 126, 871; 128, 337; 128, 338.

Prob. Act, sec. 144. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448.

Cal. Rep. Cit. 46, 233.

1510. Claims of executor, etc., against estate. If the executor or administrator is a creditor of the decedent, his claim duly authenticated by affidavit must be presented for allowance or rejection to a judge of the superior court, and its allowance by the judge is sufficient evidence of its

correctness, and must be paid as other claims in due course of administration. If, however, the judge reject the claim, action thereon may be had against the estate by the claimant, and summons must be served upon the judge, who may appoint an attorney, at the expense of the estate, to defend the action. If the claimant recover no judgment, he must pay all costs, including defendant's reasonable attorney's fees, to be fixed by the court. En. March 11, 1872. Am'd. 1880, 92.

Cal. Rep. Cit. 52, 577; 67, 244; 78, 626; 78, 627; 92, 436; 121, 637; 121, 638; 125, 361; 147, 21; 147, 460.

Prob. Act, sec. 145. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448. Am'd. 1872, 52.

Cal. Rep. Cit. 21, 31.

Claim: Ante, sec. 1493.

1511. Executor neglecting to give notice to creditors, to be removed. If an executor or administrator neglects, for two months after his appointment, to give notice to creditors, as prescribed by this chapter, the court must revoke his letters, and appoint some other person in his stead, equally or the next in order entitled to the appointment. En. March 11, 1872.

Cal. Rep. Cit. 127, 429.

Prob. Act, sec. 146. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448.

§ 1512. Executor to return statement of claims. At the same time at which he is required to return his inventory, the executor or administrator must also return a statement of all claims against the estate which have been presented to him, if so required by the court, or a judge thereof, and from time to time thereafter he must present a statement of claims subsequently presented to him, if so required by the court, or a judge thereof. In all such statements he must designate the names of the creditors, the nature of each claim, when it became due, or will become due, and whether it was allowed or rejected by him. En. March 11, 1872. Am'd. 1880, 92.

Cal. Rep. Cit. 67, 640.

Prob. Act, sec. 147. En. April 22, 1850. Rep. 1851, 489. En. 1851, 448.

Cal. Rep. Cit. 9, 636; 21, 32.