Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-21

tGat sue will, On request, pay to the
said parties entitled thereto, their fe- !;
spective shares and proportion there I,
Of as above stated, without application !
to the court for an order for partial |
distribution and that the parties TO !
whom the same is paid will execute |
and deliver to said executrix proper
vouchers and receipts therefor.
(ACKNOWLEDGEM
IN WITNESS WHEREOF, the said
parties hereto have hereunto set their
hands and seals to this agreement IN
duplicate, this 5th day of November,
1901.
EMMA KAISER (SEAL)
CHAS. KAISER (SEAL)
MRS MARY KENT (SEAL)
MRS. LILLE ESDEN (SEAL)
II
That plaintiff was not present when
said agreement was made. but hal
heretofore authorized her sisters,
Mary Kent and Lille Esden to take
whatever steps they were advised were
necessary or proper to protect plain
tiff's interests in said estate. That
plaintiff was Immediately informed of
said agreement after it was execu-
ted and ratified and approved the same
and elected to and did adopt the same
and claims the benefits thereof and, in
consequence thereof, received the pay
ments hereunder from defendant as
| hereinafter stated.
III
That thereafter and under and &C
pursuance to said agreeme It
the said VII. o. said Charles
Kaiser was admitted to pro-
bate anu said defendant was ap-
pointed and still is the eXecutrix Of
1 the estate If Charles Kaiser. deceased.
lat due notice has been given to
the creditors of said estate and that
I'll claims and debts against said es-
tate have been paid. That nc account
of said executrix has been filed in said
estate and no petition or distribution
thereof had BY order of the court
! w
And under and by virtue OF said ag-
reement, and without any application
TO or order of said court, said defend
ant paid to plaintiff out of the moneys
OF saiG estate the sum OF $4,000 on Jan.
uary Is, 1902, and the further sum OF
$4,000 on July II, 1902
Y
That on the seventh day of Novem-
Der, 1902. the defendant had in her
possession and under her control as
eXecutrix Of said estate and belonging
to said estate. more than SAT 900 in
money; and rs plaintiff is inform ed
and believes the defendant still has
said sum in her possession and under
her control as aforesaid
(Heie fellows an allegation Of lie.
mandl.
VI
That on November 7, 1902, defend
ant had and now has at least $40, 900
Of the money of said estate when
should have been then distributed an!
paid to plaintiff and others as provide ed
in said agreement and of which the
plaintiff then was and now is entitled
TO have and receive the sum of $4,000
as her share and portion thereof, and
said money is the separate property Ct
plaintiff. +.
That ever since said November :,
1862, said defendant has and now does
fail, neglect and refuse to pay plaintiff
her share of said money or any part
thereof ..
WHEREFO plaintiff prays judg
ment against defendant for the sum Of
Five Thousand Dollars, ($5OO0) with
interest thereon at seven per cent pet
!, annum since November Z, 1902 and fol
cost of suit herein
The demurrer which was sustained
, was taken on the grounds. first. that
, this complaint does not state facts
sufficient to constitute a cause of act
, ; ion, secondly, that the plaintiff has nc
legal capacity to sue because the com
, plant shows that the plaintiff is no.
party to the contract and for the
!, further reason that she cannot brin.
| suit against the executrix for any por
ton of her share Of the estate before
/, it is distributed, and thirdly, that there
: IS = defect or misjOinder Of partie.
| defendant because the complaint show.
: that the defendant is the executrix
r of the estate of Charles Kaiser. de
f ceased.
+ OPINION.
3 The two matters for our determine
: ton are whether the defendant is liza
| BILE individually on a contract made b,
j. her personally and before her appoint
ment as executrix. by which she az
. redd that after her appointment sht
: would. without any decree of distribu
! ton pay to the plaintiff and the othe
r legatees named in the will the amour
B.. of their respective proportions of an,
: money which might come into. he
J. hands in excess of Five Thousand Dol
: lars, and if she is so responsible. tn,
: question. arises. secondly, whether III,
plaintiff in this action can recover OF
; the contract set out in the complain
). when she w:s not one of the partie
t. that signed it. because it was for he
!, benefit and was accepted and partl,
$ executed between her and the defen']
Q ant. If the action were against the re
0 spondent as executrix, there would D.
Il force in the contention of her counse
G that she had no authority to enter int
( contract binding the estate, that mor
1 ely could not be taken out of the 2s
. tate to meet such an agreement an
|. that the statute relating to distributio
- r,,,-ct ho fclloWod lint no emit &c N