Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-22


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 30
pursuance to said agreeme It
the said WI. OF said Charles
Kaiser was admitted to pro-
bate am said defendant was ap-
pointed aid still is the executrix of
the estate Of Charles Kaiser, deceased.
at due notice has been given to
the creditors of said estate and that
all claims and debts against said es-
tate have been paid. That no account
Of said eXecutriX has been filed in said
estate and no petition or distribution
thereof had by 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 pla out of the moneys
Of said estate the sum CT $4,000 on Jan
uary Is. 1902, and the further sum OF
$4,000 on July IL, 1902.
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 as plaintiff is informed
and believes the defendant still has
said sum n her possession and under
her contro! as aforesaid
| (Here follows an allegation Of le-
mand).
VI
That on November I, 1902, defend
ant had and now has at least $4,000
/ OF the money of said estate which
should have been then distributed AMI
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 $1,000
as her share and portion thereof, and
Loot
plaintiff
That ever since said November 7.
1902, said defendant has and now does
faii. neglect and refuse to pay plaintiff
her share OF said money or any part
thereof.
WHEREFORE, plaintiff prays judg
ment against defendant for the sum Of
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 cause Of act
ic.l, secondly, that the plaintiff has nc
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 Dor
ton of her share of the estate before
it is distributed, and thirdly, that there
is 2. defect or misjoinder of parties
defendant because the complaint shows
that the defendant is the executrix
Of the estate of Charles Kaiser. de-
ceased.
OPINION.
The two matters for our determine.
ton are whether the defendant is liza.
BILE individually on contract made by
her personally and before her appoint.
ment as executrix. by which she ag.
redd that after her appointment she
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 her
hands in excess of Five Thousand Dol
lars, and if she is so responsible. thu,
question, arises. secondly, whether the
plaintiff in this action can recover on
! the contract set out in the complaint
when she was not one of the parties
that signed it. because it was for her
benefit and was accepted and partly
executed between her and the defen.l-
ant. If the action we're against the re-
SpOndent as executrix, there would d.,
force in the contention of her counsel
that she had no authority to enter into
contract binding the estate, that mon
ey could not be taken out of the es-
tate to meet such an agreement an1
that the statute relating to distribution
must be followed, but the suit is not
brought and no relief is asked against
the defendant in her representative
capacity, nor against the estate no,
under the statute and as the personal
judgment sought. and execution there
on could not affect or reach the money
or property of the estate. the matte,
fer consideration is not confined to the
broad proposition as urged in the de
murrer whether an heir or legatee car
bring suit against the executrix fol
any portion of her share Of the estat;