ESTATE OF ADAM SWEIGERT

ESTATE OF ADAM SWEIGERT.

No. 6484--April 26, 1878

DISTRIBUTION.—BEFORE DISTRIBUTION, ALL CLAIMS BY EXECUTOR MUST BE PAID.--EXECUTOR MUST RESORT TO ESTATE

FOR PAYMENT OF BALANCE IN HIS FAVOR.—Cannot HAVE DISTRIBUTION AND RETAIN A LIEN.

Executor asks that distribution be had to widow and minor child, subject to his lien for balance due him, widow and guardian of minor

consenting. Application denied, for the reason that the guardian cannot encumber the estate of his ward for any purpose; and this

Court has no authority to distribute without such consent.

Construing section, C. C. P., 1665.

George & Loughborough, for executor.

Edw. J. Pringle, for infant.

The account has been settled, showing a balance due the executor of $1,700. There is no personal property remaining; there is real estate, but the parties in interest do not desire to make a sale if it can be avoided. The heirs are the widow and a minor child under guardianship. The executor asks that the estate be distributed, subject to a lien upon each share for its proportion of the amount due the executor. The widow consents, and the guardian of the infant is ready to consent.

By the COURT: The guardian cannot consent. He cannot mortgage or create a lien directly; he cannot do indirectly what he cannot do directly. The object of administration is to pay the debts and expenses and distribute the residue. The executor must, before distribution, pay all balances or discharge them. If the distributes were all adults, they could consent, and estop themselves from afterwards denying it—but the guardian cannot consent. This Court has not power to create the lien asked for upon the minor’s share.

Application denied.

Transcribed by Pat Seabolt.

SAN FRANCISCO'S CASES REPORTED INDEX