the estate was allowed to redeem, which it would have had neither the occasion nor the right to do if it already had the money due from its debtor.

The force of the last case may be somewhat weakened by the subsequent case of Tarbell v. Jewett, 129 Mass. 457. No question is raised in that case, however, as to the effect the insolvency of the administrator might have upon the question. I am not disposed to deny that, so far as the administrator has the 240 means to pay, he and his sureties may be charged with the money as in the hands of the administrator.

In the case of Baucus v. Stover, 89 N. Y. 1, while the court strenuously insists that the debt must be deemed collected, it nevertheless holds that it will not for all purposes stand on the same footing as money collected. He, the administrator, cannot be committed for a contempt for not paying it over in pursuance of a final decree. Here it is interesting to ask why. It has been solemnly adjudged that he actually has the money in hand, and, of course, that being so, he can and should pay it over. Is not the mistake in allowing a decree so absolute to be entered?

In fact, it was also said that it would be well for the surrogate in the decree charging the executor with the debt as so much money "to specify the charge thus made separately, so as to save all the rights of the executor and to protect him against consequences which ought not to follow from such a charge." Whether the sureties would be bound for the debt under such a decree the court expressly declined to decide.

This was the case of an executor, and the state of New York has a statute from which section 1447 of our Code of Civil Procedure was taken. The two provisions are practically identical. The court was applying the language of the statute to the case and felt bound by its absolute terms.

The appeal was from a decision of the general term, reported in 24 Hun, 109. The lower court was reversed, but the appellate tribunal seems to have been impressed with the views of the lower court, and apparently attempted to avoid some inconveniences pointed out in an able opinion rendered by Judge Bockes. Judge Bockes thought, while the executor might be held liable to the estate, he should not be made subject to be imprisoned for debt, as he would be if charged by such a decree. Nor should his sureties be made to pay his individual debt if it has not been lost by his failure to do his duty as executor. The court of appeals met these objections by suggesting to the

probate court to show by its decree how much was real money in the hands of the executor and how much was constructive money. The constructive money may be a just liability against the executor, but the fiction becomes an unjust reality when 247 the charge is entered, without qualification, in the final decree.

The sequel to the case of Baucus v. Stover, 89 N. Y. 1, was a suit on the bond against the executor and his sureties. The appeal to the supreme court is reported in 45 Hun, 582. It was held that the decree was not conclusive against the sureties nor against the executor in a contempt proceeding. This, as the court determined, was in accordance with the ruling in Baucus v. Stover, 89 N. Y. 1, and of the following cases from other states: Harker v. Irick, 10 N. J. Eq. 269; Ordinary v. Kershaw, 14 N. J. Eq. 528; McCarty v. Frazer, 62 Mo. 263; Garber v. Commonwealth, 7 Pa. St. 265; Piper's Estate, 15 Pa. St. 533.

The court said that the sureties did not agree to augment the estate, but that the executor would not waste it or be in default, that the executor was not in default, and there was no deficiency to make good. He had all that had come to his hands and all that by the greatest diligence he could get. All this he was ready to distribute; more he could not do, unless he could make something out of nothing. This judgment was affirmed: Baucus v. Barr, 107 N. Y. 624.

Sureties are usually entitled to be subrogated to the securities held by the creditor. Here they would succeed to the debt against the administrator. They are simply compelled to purchase a worthless debt which they did not guarantee. Is it possible that this legal fiction can work such a result? The estate has lost nothing by the administration. By the procedure recommended in Baucus v. Stover, 89 N. Y. 1, as to the form of the decree settling the final account, the estate would still retain the personal demand against the administrator, changed to a judgment. And there being no official delinquency, except that created by the fiction, which must stop where equity fails to go with it, there can be no reason for holding the sureties. They are considered as estopped by the decree founded, not on a fact, but on the fiction. The administrator, so far as the decree can subject him to imprisonment for failing to pay over the money, has equal reason to complain of its form.

The same conclusion was reached in a different way by the supreme court of Vermont in Lyon v. Osgood, 58 Vt. 707. It

was a suit in equity by a surety to reform the decree because it charged the executor with his entire personal debt, whereas 248 it was alleged he had the means to pay only a part of it. The relief was granted, the court saying that the executor should not be charged for his personal debt beyond his actual ability to pay, "for only to that extent does he by his appointment receive money from himself belonging to the estate." And again the authorities are cited. They need not be repeated here. Unquestionably, there is a conflict, but Woerner, in 2 American Law of Administration, 1140, states that sureties are held not bound when the administrator is utterly insolvent in Indiana, Maine, Wisconsin, New Jersey, New York, Oregon, Pennsylvania, Tennessee, and Vermont.

If this view is to prevail, there may arise a question as to the proper form of entering the decree settling the final account. It seems to me the mode suggested in Baucus v. Stover, 89 N. Y. 1, 45 Hun, 582, is a proper method, and that the decree involved here should be so modified. The administrator should be charged with the entire sum, including the debt due from himself, and the decree should then show what portion of that amount consisted of debts due from the administrator which he reported as cash on hand. Of course, if it appears that he actually has the money, this formula would be unnecessary.

But under such a decree the administrator might be able to purge himself of contempt, and the sureties, if it should be held to be a defense for that is not involved here could show that some portion of it the administrator never had the means to pay. And the heirs could still proceed against the administrator and collect the amount from him if he acquired the

means.

The case of Treweek v. Howard, 105 Cal. 434, is much relied upon by respondent. That was against the sureties of an executor. That decision was based upon the estoppel of the decree and upon section 1447 of the Code of Civil Procedure, which was construed to mean that the liability of the executor for such debt was in all respects the same as for money in his hands.

That decision may be justified by the estoppel of the decree. The question is not so presented here. So far as it is based upon the statute, it is apparently in conflict with the cases in New York construing the statute from which our code provisions are 249 taken. This is, however, not the case of an executor. The code lays down no such rule in regard to administrators. They are still left under the common-law rule, under which, as

we have seen, the debt due the estate from an insolvent administrator is not for all purposes regarded as money on hand, but is so regarded only by a fiction of law which can only subsist with justice.

I do not see under this view that the appellant was injured by the ruling rejecting the offered evidence. The court should, perhaps, have permitted the evidence to be given, but the only relief it could have entitled him to receive is warranted by the evidence put in by the contestant. The decree settling the annual account, including the findings, show that the administrator was charged, not for money actually received, but for a debt due from him to the estate. In Miller v. Lux, 100 Cal. 609, it was held that the decree is in reality a judgment and the findings are a part of the judgment-roll. The findings in the matter of the first contest contain a full statement of the facts.

The case is remanded, with directions to modify the decree so that it will appear upon the face thereof that a certain portion of the money in the hands of the administrator, to be stated therein, is for a personal debt due from the administrator to the estate of the decedent.

McFarland, J., and Henshaw, J., concurred.

EXECUTORS AND ADMINISTRATORS-SURETIES' LIABILITY FOR ADMINISTRATOR'S PERSONAL DEBT.-If the assets of a decedent's estate consist, in whole or in part, of a debt due the estate from the administrator, the law presumes, according to some of the cases, that it has been paid, and therefore received by the administrator. Consequently, his sureties are held accountable for it, whether the principal is able to pay or not. Other authorities, however, say that the liability extends only to cases where the administrator is able to pay the debt: Note to Commonwealth v. Stub, 51 Am. Dec. 521. Compare note to Griffith v. Chew, 11 Am. Dec. 567.

EXECUTORS AND ADMINISTRATORS-INDIVIDUAL LIABILITY. In an action against an executor in his representative capacity, it is not competent to establish and adjudge an individual liability against him: Insley v. Shire, 54 Kan. 793, 45 Am. St. Rep. 308.

SELNA V. SELNA.

[125 CALIFORNIA, 857.]

VENDOR AND PURCHASER-VENDOR'S LIEN-WAIVER OF, BY FILING CLAIM AGAINST ESTATE.-Under a statute which gives a vendor's lien to one who sells real property, independently of possession, for so much of the price as remains unpaid and unsecured otherwise than by the personal obligation of the buyer, a vendor, holding a deceased purchaser's note for the balance of the purchase price of land, does not waive his lien by having his claim filed and allowed against the purchaser's estate.

VENDOR AND PURCHASER-VENDOR'S LIEN-WAIVER OF-BURDEN OF PROOF.-In an action to establish a vendor's lien, the burden of proof is upon the purchaser to show that the lien has been displaced or waived. If, under all the circumstances, it remains in doubt, the lien attaches.

VENDOR AND PURCHASER-VENDOR'S LIEN-WAIVER OF-PRESUMPTION.-So long as the debt for the purchase price of land exists, courts will not presume that the lien has been waived, except upon clear and convincing testimony.

Action to enforce a vendor's lien, brought by the appellant, Leopold Selna, individually, and as administrator, against Pearl E. Selna, and others.

Louttit & Middlecoff, for the appellant.

Budd & Thompson, for the respondents.

358 COOPER, C. Action to recover four hundred and twenty dollars and have same declared a lien upon certain real estate. Judgment for defendants. Appeal from the judgment on the judgment-roll. It appears from the findings that on August 30, 350 1894, the plaintiff sold and conveyed by deed of grant the premises described in the complaint to one Patrick Selna, for the sum of fifteen hundred dollars, all of which amount had been paid prior to August 2, 1897, except the sum of five hundred dollars, and on said last-named date said Patrick Selna executed and delivered to plaintiff his promissory note for said balance of five hundred dollars. On this note there was paid on the twenty-seventh day of December, 1897, the sum of eighty dollars. On January 15, 1898, the said Patrick Selna died intestate, being at the time of his death the owner of the said real estate, leaving a balance of four hundred and twenty dollars due and owing to plaintiff on said promissory note, and leav ing surviving him his wife, Pearl E. Selna, one of the defendants herein. February 4, 1898, the plaintiff was duly appointed administrator of the estate of said Patrick Selna, deceased, quali