
    [No. 11220.
    In Bank.
    February 10, 1887.]
    JAMES W. ROWLAND, Appellant, v. MICHAEL J. MADDEN et al., Respondents.
    Estate of Decedent—■ Husband and Wife — Community Property— Action against Estate of Deceased Wife — Pleadings.—The action was brought by a surviving husband against the executors of the last', will of his deceased wife, to recover certain money claimed to have been, community property, and secretly used by the wife as her own separate property. The complaint alleged an indebtedness of the estate of the-decedent, and that a claim for the same had been presented to the defendants as executors, and by them rejected. Held, that the allegation, of the presentation of the claim was material.
    Id.—Replevin of Money — Specific Fund.—Held further, that the action could not b’e treated as in the nature of replevin to recover the-money as specific community property belonging to the plaintiff, because-neither the money, nor any specific property or fund to which it could, be traced, was shown to have come into the possession of the defendants.
    Appeal from a judgment of the Superior Court of the-city and county of San Francisco, and from an order' refusing a new trial.
    The facts are stated in the opinion of the court.
    
      Moses G. Cobb, for Appellant.
    
      A. N. Drown, and William H. Fifield, for Respondents..
   McFarland, J.

After full argument on rehearing,, we see no reason to depart from the conclusion heretofore reached in this case. Appellant complains that the judgment heretofore rendered by this court rests too-largely upon technical grounds. We are disposed to-look through technical difficulties, and mere questions of pleading and practice, to the real legal merits of a case,, when we can do so without violating well-settled principles; but the rule that the proofs must correspond to the averments is too grave to be totally disregarded. Appellant’s real cause of action, if he has any, lies in the alleged fact that his wife, now deceased, about thirteen years before her death, got possession of some sixteen thousand dollars in money, of community property, and secretly used it as her own separate property,—appellant believing all the time that she had paid it out on certain debts which she represented the community to be owing, but which had no existence. Now, this action is brought against the defendants as executors of the last will of the deceased wife. The complaint charges an indebtedness of the estate, and that a creditor’s claim for the same, duly verified, was presented to defendants in accordance with sections 1493 and 1494 of the Code of Civil Procedure, and was by them rejected; and its prayer is for a money judgment to be paid out of the estate in due course of administration. . Clearly in such a case there must be proof of the presentation of the claim to the executors.

But if we were permitted to look further into the case, we could see nothing to warrant a reversal of the judgment. If we could disregard the pleadings and treat the action as one in the nature of an action of replevin to recover the money, not as a debt, but as specific community property belonging to the husband,—'in which case defendants should not have been sued as executors,—then appellant would fail, because the money, or any specific property or fund to which it can be traced and identified, is not shown to have come into the possession of respondents. If the money may be considered as property subject to a trust, and it cannot be identified either in its original or in any substituted form, then, although appellant might rely upon the personal liability of the trustee, he has no special claim upon her general estate superior to that of other creditors. In that view his position toward the estate is simply that of other contract creditors, and his claim should have been presented to the executors. (Lathrop v. Bampton, 31 Cal. 23.)

These views of the case make it unnecessary to notice other points which are ably presented by counsel for respondents.

Judgment and. order affirmed.

Sharpstein, J., McKinstry, J., and Morrison, C. J., concurred.

Paterson, J., concurred in the judgment.

Thornton, J., dissented.

The following is the opinion above referred to, rendered in Bank on the 29th of November, 1886.

Sharpstein, J.

—The plaintiff sues the defendants as executors of the last will and testament of Jane Rowland, deceased, to recover the sum of thirty-six thousand dollars, which he alleges was justly due to him. from said testate at the time of her decease; and he further alleges that on the ninth .day of December, 1881, said claim, duly verified by the oath of plaintiff, was duly presented to the defendants as executors of the will of said Jane Rowland, deceased, for allowance.

The defendants in their answer deny that on the ninth day of December, 1881, the claim of plaintiff for said sum, or any claim whatever, was duly presented to these defendants for allowance, or that any proper or legal claim, or any of the matters or things in the plaintiff’s complaint alleged, has been at any time duly or otherwise presented to these defendants for allowance. Upon this issue the court finds that the alleged claim of plaintiff was not, nor was any claim verified by the oath of plaintiff, duly or otherwise presented to the defendants 'as executors, as aforesaid or otherwise, for allowance on the ninth day of December, 1881, or at any other time.

The finding is not against the evidence, and appellant does not attack it on that ground. He contends that the pleadings do not raise any such issue; that the allega-. tions of the complaint, as to that matter, are wholly immaterial; but if material, they are not sufficiently denied to raise an issue.

As to the materiality of the allegations, we entertain no doubt. The case differs but little, if at all, in principle, from Lathrop v. Bampton, 31 Cal. 17, in which it was held that the due presentation of the claim, in that case, to the executor was a prerequisite of the right to maintain an action against him.

Treating the allegation as a material one, was it sufficiently denied to raise an issue ?

The defendants in their answer'“deny that on the ninth day of December, at said city and county, or elsewhere, vhe claim of the plaintiff for the sum of thirty-six thousand dollars, .... or the claim as in plaintiff’s complaint set forth, or the claim upon which this action is founded, or any claim whatever, was duly presented to these defendants for allowance, or that any proper or legal claim for any of the matters or things in plaintiff’s complaint, has been at any time, duly or - otherwise, presented to these defendants for allowance.”

It appears by the record that this was treated as a denial sufficient to raise an issue upon the plaintiff’s allegation of a presentation of his claim to the defendants. It is doubtless obnoxious to criticism, but under section 475, Code of Civil Procedure, the defect must now be disregarded.

Other questions are discussed by counsel, upon which it is unnecessary to express any opinion at this time.

Judgment and order affirmed.

McKinstry, J., Myrick, J., Thornton, J., and Morrison, C. J,, concurred.  