Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-17
tom.
Eighth:
1t is further agreed l.. 1t

.1tiJ sac Will On request, pay u InS
said parties entitled thereto. their &C.
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
whom the same is paid will execute
and deliver to said executrix proper
vouchers and receipts therefor.
NOWLEDGEMENT).
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)
u
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 INN ediatelv informed of
said agreement after it vas eEecu-
led and ratified and approved TIE same
and elected to and did adODt he same
and ciain1s 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 Oh said Charles
i>aiser vas admitted to pro-
bate an said defendant was ap-
pointed and 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 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.
| Y
That on the seventh day of Noven1-
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 as plaintiff is informed
and believes the defendant still has
said sum in her possession and under
her control as aforesaid
| !Hnrn follows o1InootioI, Of 10
mand).
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 and
paid to plaintiff and others as provided
in said aoreement and of which the
plaintiff then was and now is entitled
to have and receive the sum Of 5000
as her share and portion thereof, and
said money is the separate property CT
plaintiff.
! That ever since said November =
1892, said defendant has and now does
iai!, neglect and refuse to pay plaintiff
her share of said money or any part
thereof
WHER IFORE, plaintiff prays judg
ment against defendant for the sum OF
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 sustaine,
, was taken on the grounds. first, thai
, this complaint does not state facts
sufficient TO constitute a cause of act
, ion, secondly, that the plaintiff has NJ
legal capacity to sue because the com
, plant shows that the plaintiff is no
a party to the contract and for tn,
! further reason that she cannot brin.
suit against the eXecutrix for any por
ton of her share of the estate befor.
, it is distributed, and thirdly, that there
: i = defect or misjoinder of partie
defendant because the complaint show
: that the defendant is the executriS
y Of the estate of Charles Kaiser. de
+ ceased.
f, OPINION.
= TIE two matters for our determine
= :ion are whether the defendant is liza
1 bic individually on contract made b,
j. her personally and before her appoin,
ment as eXecutrix. by which she az
j. redd that after her appointment sh
: would, without any decree Of distrlbu
1 ton pay to the plaintiff and the othe
I leg0teas named in the viii the amour
. C their respective proportions OF an
: money which might come into he
: hands in excess of Five Thousand Do
: lars. and il she is so responsible tn
: question, arises: secondly, whether th
| rlaintiG IN this action can recover O.
: the contract set out in the complain
), when she was not one of the partie
t that signed it. because it was for he
, benefit and was accepted and partl
5 executed between her and the defen1
9 ant. If the action were against The IL
D spondent as executrix, there would %
l force in the contention of her counse
e that she had no authority to enter int
: contract binding the estate, that mor
d ey could not be taken out of the .:
2 tate to meet such an agreement an