Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-20
1t is further agreed l.. It

Ing 10 Sdiu estate III excess u Inc SUN
Of Five Thousand Dollars. (s5000,,
t4at Size ~iii, OF request, pay to the
said parties entitled thereto. their re-
spective shares and proportion there
Of as above stated, without application
to the court for IN order fcI partial
distribution and that the parties 10
whom 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 n
duplicate, this 5th day of November,
1901.
EMMA KAISER (SEAL)
CHAS. KAISER (SEAL)
MRS. MARY KENT (SEAL)
MRS. LILLE ESDEN (SEAL)
IT
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
tiffs interests i'll said estate. That
plaintiff was Immediately informed of
said agreement after it was execu-
red ana 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 rom defendant as
| HeTCiuafte. stated.
III
That thereafter ard under and sc
pursuance to said agreeme It
the said VIZ o. SAID Charl IS
haiser was admitted to pro-
bate anu said defendant was ap-
| pointed and still is the executriX of
the estate CT Charles Kaiser, deceased
at due notice has been given to
1.-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 CT 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.
| 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 as plaintiff is informed
and believes the defendant still has
said sum in her possession and under
her control as aforesaid
(Rere follows an allegation of lie
mandD.
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
in said agreement end of which the
plaintiff then was and now is entitled
TO have and receive the sum of $4,000
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
T WHEREFORE, plaintiff prays judg-
ment against defendant for the sum Of
Five Thousand Dollars, (s5OOO) 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 a cause Of act
ion, 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 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 parties
defendant because the complain shows
that the defendant is the executrix,
of the estate of Charles Kaisas. de-
ceased s
.-..- OPINION.
Tie two matters for, our determine
ton are whether the defendant is liza
BILE Individually on contract made by
! her personally and before her appoint
nenJ IS eXecutrix. by which she ag-
reid that after her appointment she
would, without any decree of distribu-
ton pay to the plaintiff and the other
/ legatees named il the Wilk the amount
Of their respective proportions of anv
money which might come into her
hands in excess OF Five Thousand Dol
lars. and II she is So responsible. TIL
question, crises. secondly, whether the
plaintiff in this action can recover on
tae. contract set Gut in the complaint
when she wc-s not one of the parties
that signed it. because it was for her
-Jcneht aud was accepted and partly
eEacate3 'hetween her and the defend
=, 2 ation we've against the re-
MON, e'lt as executrix, there would DE-
force in the contention of her counsel
that she Lad no authority to enter into
contract binding the estate, that mon
ely could not be taken out of the IS
tate to meet such an agreement ans
that the statute relating to distribution
!, f<lI r.