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District Court of Appeal, Second District, Division 2, California.

JACOBSON et al. v. MEAD et al.

Civ. 9121.

Decided: March 17, 1936

Jess E. Stephens, of Los Angeles, for appellants. Benjamin & Benjamin and Aaron Elmore, all of Los Angeles, for respondents.

The plaintiffs contend that we should have made it appear more clearly in the original opinion that it was not necessary to file a claim against the estate of William Mead, deceased, in order to obtain a money judgment against Nella Wilde Mead personally. We assume that this is so apparent that it needs no statement by us, but if we make such statement now, we should also say that Nella Wilde Mead was not a party to the contract which the plaintiffs seek to rescind. Furthermore, there was no allegation in the complaint that any of the moneys which were sought to be recovered were paid by plaintiffs to Nella Wilde Mead in her personal capacity; on the contrary, both the allegation and the findings are that the money was paid by plaintiffs “to William Mead and to defendant Nella Wilde Mead, as administratrix of his estate, etc.”

Plaintiffs contend also that the action for a money judgment was not barred by the statute of limitations as to the moneys paid within two years prior to the commencement of the action. The trouble with this contention is that the judgment does not segregate those moneys which were paid within the two-year period and those paid before that period. In this connection it should also be kept in mind that plaintiffs are seeking to rescind a contract made with them by William Mead during his lifetime and such rescission is attempted 51/212 years after the contract was made, February 8, 1927. Before the plaintiffs may recover for moneys paid upon the trust deed note, they must first successfully establish their right to a rescission of the original contract.

Plaintiffs also contend that it is not necessary to file a claim against the estate for moneys paid after William Mead's death. In a situation such as here presented, where money is paid to a representative of the estate upon a contract which is rescinded and therefore void, such money is no longer held as estate funds and the liability, if any, of the representative, being upon an implied promise to pay, is personal. While it is true that it is not necessary to file a claim for such funds against the estate of decedent, it is also true that an action to recover such funds should properly be brought, not against the representative of the estate as such, but against him personally. See cases collected under 11b Cal.Jur. 286, §§ 872, 873, 868, 869.

It would not be necessary, of course, to file a claim against the estate in order to bring a quiet title action against the trust deed or to enforce a lien upon specific property if such lien exists, but plaintiffs herein are seeking a money judgment, the effect of which would be to deplete the general assets of the estate. The judgment, even as to the nonpecuniary part of it, must be reversed for the reasons stated in the original opinion.

Petition for rehearing denied.


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