Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-12
It is further agreed t.. 1t

OF Five Thousand Dollars ($50OOl,
that she viii, On request, pay to the
said parties entitled thereto, their re-
spectiye shares and proportion there
of as above stated, without application
to the court for an order for partial
distribution and that the parties TO
! HON 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 9Th day of November,
1901.
EMMA KAISER (SEAL)
CHAS. KAISER (SEAL)
MRS. MARY KENT (SEAL)
MRS. LILLE. ESDTN (SEAL)
That plaintiff was n. present when
said agre nment was made. but hal
theretofor 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
| That thereafter and under and &c
pursuance to said agreeme It
|
Kaiser was admitted to pro-
bate anu said defendant was ap-
pointed I'D 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.
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
CT said estate the sum of $4,000 on Jan
uary Is, 1902, and the further sum O,
| piUoO on july IL, lfuZ.
|
That on the seventh day of Novem
Der, 1902. the defendant had in her
possession and under her control "a
eXecutriX of said estate and belonging
to said estate. more than $4,000 in
money; and IS plaintiff is informe ed
and believes the defendant still has
5aid sum in her possession and under
her control as aforesaid
(Here follows an allegation of lie
| mandD.
VI
That On November Z, 1902 defend
ant had and now has at least $4,000
of the money of said estate which
should have been then distributed ani
paid to plaintiff and others as provided
in said agreement and of which tins
plaintiff then was and now is entitled
to have and receive the sum of IS 90,
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 ci
Five Thousand Dollars. $4,000 with
interest thereon at seven per cent pc,
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 ne
legal capacity to sue because the com
plant shows that the plaintiff is mo-
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
; of the estate of Charles Kaiser. de
: ceased.
: OPINION.
i The two matters for our determine
tion ere whether the defendant is liza
BILE individually on a contract made by
her personally and before her appoint
IucIt Us cXeCutTlX. ny WHICH she az
redd that after her appointment sh:
would, without any decree of distribu
ton pay to the plaintiff and the othel
leSatees named in the will the amoun
Of their respective proportions of an,
money which might come into he,
hands in excess of Five Thousand Dol
lars, and if she is SO responsible ths
question. arises. secondly, whether The
plaintiff in this action can recover Q,
the contract set cut in the complaint
when she YVES 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
-. Y action were against the re
spondCD IS executrix, there would d.
force in the contention of her counse
that she had 10 authority to enter int
contract binding the estate, that mon
ey could not be taken out of the as
, tate to meet such an agreement an.
that the statute relating to Distribute,