Summary
In Hancock v. Whittemore, 50 Cal. 522, it was said: "The assessment (for street improvements) was issued after the death of H. M. Whittemore.
Summary of this case from Miller & Lux, Inc. v. KatzOpinion
Appeal from the District Court, Third Judicial District, City and County of San Francisco.
H. P. Whittemore owned a lot in San Francisco. On the 3d day of May, 1869, the Board of Supervisors adopted a resolution of intention to improve the street on which it fronted. The contract was let, and, on the 6th day of June, 1860, the assessment for the expenses was made and issued. The lot was assessed in the sum of $ 2377.72. Whittemore had died on the 9th day of March, 1870. Two of the defendants were the executors of his estate, and the others were his children and heirs. The executors published notice to creditors, and the plaintiffs, who were the contractors, presented the assessment to the executors for allowance as a claim against the estate. The claim was rejected. This was an action to enforce a lien on the lot for the assessment. The defense was that the demand was a claim against the estate, and that suit had been brought more than three months after the claim had been rejected. The court below found as a fact that the suit had been brought more than three months after the claim had been rejected, but gave judgment for the plaintiffs. The defendants appealed.
COUNSEL
Being a " claim" against the estate it was necessary to present it to the executors for allowance before a suit thereon could be maintained. (Probate Act, Secs. 136, 133; Hentsch v. Porter , 10 Cal. 559; Ellis v. Polhemus , 27 Cal. 354; Harp v. Callahan , 46 Cal. 222; Pitte v. Shipley , 46 Cal. 154.)
The suit should have been brought within three months. (Probate Act, Sec. 134.)
Jarboe & Harrison, for the Appellants.
M. A. Edmonds, for the Respondents.
Taxes assessed against the property of an estate pending administration, are not claims which require to be presented for allowance. (People v. Olvera , 43 Cal. 494.)
The case at bar is the same in principle. The assessment upon which suit is brought is in its nature a special tax against the property. (Himmelman v. Spanagel , 39 Cal. 392, 393; Hendrick v. Cowley , 31 Cal. 474, 475; Nolan v. Reese , 32 Cal. 485, 486; Emery v. Bradford , 29 Cal. 84.)
OPINION By the Court:
An assessment for the improvement of a street is a municipal tax, and the property owner is brought into relations with the proceedings which are initiated by the resolution of intention, only when the tax is levied; that is to say, when the assessment is made and issued.
The assessment was issued after the death of H. M. Whittemore. The tax thus assessed did not constitute a claim against the estate of H. M. Whittemore which was required to be presented for allowance. (People v. Olvera , 43 Cal. 492.)
Judgment affirmed.