FALKNER et al. v. FOLSOM'S EXECUTORS

FALKNER et al. v. FOLSOM'S EXECUTORS. A mortgage debt, due by the estate of a deceased person, stands in the same position as any other debt, and its allowance by the executor and Probate Judge gives to the claim all the virtues and properties which a judgment against executors can have under our system. There being no necessity for a foreclosure suit against an estate, where the claim has been allowed, and the policy of the law being against burdening an estate with unnecessary costs, such a bill will not lie. Appeal from the District Court of the Twelfth Judicial District. The plaintiffs filed their hill against the executors of Joseph L. Folsom, deceased, to foreclose a mortgage made by Folsom in his lifetime. The bill avers that the claim had been presented to the executors, and had been allowed by them and by the Probate J udge. The defendants demurred to the bill. The demurrer was overruled, and no answer being filed by the defendants, the case was referred to a referee to compute the amount due, and take proof of the facts averred in the complaint. Upon the report of the referee, a judgment and decree of foreclosure were entered, as prayed for in the complaint. Defendants appealed. Frederick Billings for Appellants. Hoge & Wilson for Respondents, No briefs on file. [MAJORITY — Mr. Justice Heydenfeldt delivered the opinion of the Court.] Mr. Justice Heydenfeldt delivered the opinion of the Court. Mr. Chief Justice Murray and Mr. Justice Terry concurred. This case differs from that of Ellissen v. Halleck et al. at this term, in that the claim of the complainants was duly presented to the executors, and duly allowed by them and by the Probate J udge. This gave to the claim all the virtues and properties which a judgment against executors can have under our system. This is apparent from the language of § 140 of the Act to regulate the settlement of estates, which provides that the effect of a judgment against an executor, etc., shall be only to establish the claim in the same manner as if it had been allowed by the executor and the Probate Judge, etc. There was, then, no necessity for this suit, and the judgment rendered can give the complainants no. greater rights nor better security than they had before. The policy of the law against burdening an estate with unnecessary costs, is fully considered in the opinion delivered in the case of Ellissen v. Halleck et al. The judgment is reversed, and the bill dismissed.