Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-13
ton J..

trlDutlOn Thereon. said eXecutr1X Shall
lave in her possession money belong
ing to said estate in excess Of the sum
Of Five Thousand Dollars. (S5000,,
tisst sue VIII, on request, pay to the
said parties entitled thereto, their re-
spective shares and proportion there
Of as above stated, without application
10 the court for an order for partial
distribution and that the parties 10
whom the same is paid will execute
and deliver to said executrix proper
vouchers and receipts therefor
(ACKNO WLEDGEMENT).
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)
IT
That plaintiff was not present when
said agreement was made, but hal
heretofore authorized her sisters,
Mary Kent and Lille Esden to take
WhateEeT steps they were advised were
necessary or proper to protect plain
tif'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
ConsacuoT thereof. received the pay
ments the~eunder from defendant as
hereinafter stated.
III
That thereafter and under and e
pursuance to said agreeme It
the said W. o. said Charles
Kaiser was admitted to pro-
bate anu said defendant was ap-
pointed ard still is the executrix of
the estate # Charles Kaiser. deceased.
at due notice has been given to
the creditors Of said estate ana that
all claims and debts against said es-
e5e bavo .eep paid. That nc account
Ct said eXScutriX has been filed in said
estate and no petition or distribution
thereof had y order OF the court.
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 said estate the sum Of $4,000 on Jan
uary Is, 1892, ana tie turtle. sum o.
gi0vU on .Iniv -
II, IJU2.
V
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 informed
and believes the defendant still has
said sum in her possession and under
her control as aforesaid
tHere follows an allegation of lie
mand).
vi
That on November Z. 1902, defend
ant had and now has at least $40, 900
of the money of said estate which
should have been then distributed and
paid to plaintiff and others as provided
in said agreement and of which the
plaintiff then was and now is entitled
to have and receive the sum of S., 200
as her share and portion thereof. and
said money is the separate property Ct
plaintiff.
VII
That ever since said November I,
1902, said defendant has and now does
fail, neglect and refuse to pay plaintiff
her share of said money or any part
thereof.
WHEREFORE, plaintiff prays judy
ment against defendant for the sum If
Five Thousand Dollars, ($5OOO) with
interest thereon at seven per cent per
annum since November Z, 1902 and for
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 q cause of act
ion, secondly, that the plaintiff has no
legal capacity to sue because the com.
plant shows that the plaintiff is not
a party to the contract and for the
further reason that she cannot BRING
suit against the executrix for any por
ton of her share of the estate before
it is distributed, and thirdly. that there
is e defect or misjoinder OF parties
defendant because the complaint shows
that the defendant is the executrix
Of the estate OF Charles Kaiser. de-
ceased.
/ OExlNXON.
The two matters for our determine
ton are whether the defendant is liza
BILE individually on q contract made by
her personally and before her appoint
ment as executrix. by which she ag
redd that after her appointment sha
would, without any decree of distribu
ton pay to the plaintiff and the other
legatees named in the will the amount
Of their respective proportions Of any
money which might come into hey
hands in excess of Five Thousand Dol
lars, and If she is SO responsible. th,
question. arises. secondly, whether The
plaintiff in this action can recover or
the contract set out in the complain.
when she was not one Of the parties
that signed it. because it was for hel
benefit and was accepted and partly
executed between her and the defend
ant If the action we're against the re
spondent as executrix, there would d.
force in the contention of her cOunse