Estate of Bullard

concur in the judgment, and place my concurrence upon the proposition decided in Smith v. Hall, supra, that “the statute of limitations does not begin to run when no administration exists on the decedent’s estate at the time the cause of action accrued.”

In making that decision the court cited Danglada v. De la Guerra, supra, to sustain the proposition. That case, however, does not sustain it, and I know of no express provision of law that does. But section 1500 of the Code of Civil Procedure forbids the commencement of any action upon a claim against a decedent *358 unless the claim is first presented to an executor or administrator, etc., and it seems to have always been con. sidered absurd to hold that the statute would run against a cause of action which could not possibly be put in suit. Upon this ground apparently, and by mere judicial legislation, the rule above quoted has been established, and it is now too late to set it aside by a contrary decision, if a contrary decision could be justified.

I have examined the cases cited by appellant, but they do not appear to support his contention. Hibernia Savings & Loan Society v. Herbert, 53 Cal. 375, is not at all in point.…

The decedent in his lifetime executed his promissory note to the Hibernia Savings and Loan Society, payable February 10, 1887, together with a mortgage upon certain real estate to secure its payment. *356 Prior to the maturity of the note, viz., April 6, 1886, he died, and a document purporting to be his last will and testament, which was presented for probate in April, 1886, was finally rejected January 9, 1893. Letters of administration were issued upon his estate August 15, 1894, and notice to creditors to present their claims to the administrator for allowance was first published March 9,1895. The Hibernia Savings and Loan Society presented its claim upon the aforesaid note and mortgage to the administrator for allowance March 28, 1895, and it was allowed by him and approved by the judge of the court, and filed as an approved claim August 7, 1895. November 25,1895, the administrator rendered the account of his administration for settlement, and included therein the said claim of the Hibernia Savings and Loan Society. At the hearing of the settlement the appellant, one of the heirs of the decedent, contested the allowance of the claim upon the ground that at the time of its…