Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-19

spectiye shares and proportion there
Of as above stated. without application
to the court for an order for partial
and that the parties TO
y, HON the same is paid will execute
and deliver to said executrix proper
vouchers and receipts therefor.
ACKNOWLEDGEMENTS
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. LII he ESDEN (SEAL)
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 an0 ratified and approved the same
and elected to and did adopt the same
and claims the benefits thereof, and, in
cOnseQueD &c thereof. received the pay
Elents Hereunder from defendant as
hereinafter stated.
That thereafter ard under and &c
pursuance to said agreeme It
the said VIII Oh said Charles
haiser was admitted to pro-
bate anu said defendant was ap-
pointed md still is the executrix of
the estate Of Charles Kaiser, deceased.
lat 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.
e-. "
And under and by virtue of said az
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. 1902, and the further sum OF
$4,000 on July II. 1902
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 $4,000 in
money; and rs plaintiff is informed
and believes the defendant still has
said sum in her possession and under
her control as aforesaid
(Here follows an allegation of le-
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
N said agreement and of which the
plaintiff then was and now is entitled
10 have and receive the sum Of SIS, 900
as her share and portion thereof, and
said money is the separate property CT
plaintiff
That ever since said November Z,
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 judg-
ment against defendant for the sum Of
Five Thousand Dollars, (S5O0O) with
interest thereon at seven per cent per
annum since November Z, 1902 and fer
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
len, secondly, that the plaintiff has no
legal capacity to sue because the COM
plant shows that the plaintiff is not
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
S : 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.
~ two matters for our determine
! ton ore 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 distrlbu-
ton pay TO the plaintiff and the other
iegatees named il the will the amount
Ct their respective proportions of anv
money which might come into her
hands in excess of Five Thousand Dol
lars, and if she is SO responsible tn,
question, arises. secondly, whether the
plaintiff in this action can recover on
the contract set out in the complaint
when she IVES not one of the parties
that signed it. because it was for her
benefit and was accepted and partly
executed between her and the defend
ant. If the action were against the re-
spondent as executrix, there would De
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 as-
tate to meet such an agreement ami
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 ronroSont tivn