Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-18

SAID paTCioS entitled JQ0reIO, Jlclr re-
spective 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.
ACKNOWLEDGEMENTS.
IN WITNESS WHEREOF, the said
parties hereto have hereunto set their
hands and seals to this agreement IN
duplicate, this 5th dav Of November,
1901
EMMA KAISER (SEAL)
CHAS. KAISER (SEAL)
MRS. MARY KENT (SEAL)
MRS. LILLE ESDEN (sEAL)
That plaintiff was not present when
said agreement was made. but hal
heretofore authorized her sisters,
Mary Kent end 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
nentS hereunder from defendant as
hereinafter stated
III
That thereafter and under and e
pursuance to said agreeme It
Kaiser was admitted to pro-
bate anu said defendant was ep-
| 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.
| 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
of said estate the sum of $4,000 en- Jan.
uary Is. 1902, and the further sum OF
$4,000 on July II, 1902.
That on the seventh day of Novem
Der, 1902. the defendant had in hel
possession and under her control a:
executrix of said estate and belonging
to said estate. more than $4,000 il
money; and as 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 lie
mand).
vi
That on November Z. 1902, defend
ant had and now has at least $40 ,O0'
of the money of said estate which
should have been then distributed an,
paid to plaintiff and others as provide,
in said agreement and of which tn,
plaintiff then was and now is entitle;
To have and receive the sum of $500,
as her share and portion thereof, an,
said money is the separate property C.
!, plaintiff.
VII
That ever since said November Z
1902, said defendant has and now doe
fail neglect and refuse to pay plaintif
her share of said money or any par
, thereof
) WHEREFORE, plaintiff prays jude
ment against defendant for the sum {
( Five Thousand Dollars, ($5000) wit
interest thereon at seven per cent pc
? annufh since November Z, 1902 and TO
cost of suit herein
The demurrer which was sustaine
;, was taken on the grounds, first, tina
. this complaint does not state fact
!: sufficient to constitute a cause of &C
. ion, secondly, that the plaintiff has n
!. legal capacity to sue because the con
. plant shows that the plaintiff is nc
9 a party to the contract and for tn
! further reason that she cannot brin
j suit against the executriX for any pc
ton of her share Of the estate befor
|, it is distributed, and thirdly, that ther
: Is : defect or misjoinder of partie
i defendant because the complaint show
: that the defendant is the executri,
r Of the estate of Charles Kaiser. d.
f ceased.
f OPINION.
q Tie two matters for our determine
y ton are whether the defendant is lii
/ BILE individually on contract made
i her personally and before her appoin
ment as eXecutriX. by which she a:
J. redd that after her appointment sh
! would, without any decree of distrlb1
d ton pay to the plaintiff and the othe
r leSatees named il the will the amour
J. of their respective proportions OF an
! money which MIGHT come into he
l. hands in excess of Five Thousand Do
) lars, aud If she is SO responsible tn
t. question, arises. secondly, whether th
4 plaintiff IN this action can recover O
f. the contract set cut in the complain
), when she YVES not one of the partit
It that signed it, because it was for HI
/, benefit and was accepted and part
$ executed between her and the defen
e ant. If the action were against the +
D sDOndent as executrix, there would
IL force in the contention of her couns
g that she had no authority to enter in
X contract binding the estate, that mo
d ey could not be taken out of the c
,a tate to meet such an agreement al
/. that the statute relating to distribute
II must be followed, but the suit is n
It brought and no relief is asked again
ID the defendant in her representa-
If capacity, nor against the estate n
o. under the statute and as the person