Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1904-05-14

L
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)
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 and ratified and approved the same
and elected to aud did adopt the same
and claims the benefits thereof, and in
consequence thereof, received the. pay
ments hereunder FROM defendant as
hereinafter stated.
b. III
That thereafter and under and &c
pursuance to said agreeme It
the said VIZ. Oh said Charles
kaiser was admitted to pro-
bate anu said defendant was ap-
pointed end 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 aud 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 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 SAT 900 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 lie
MANDY.
vi
That on November Z. 1902, defend
ant had and now has at least $40, O0f
of the money of said estate which
should have been then distributed ana
paid to plaintiff and others as provided
in said agreement end of which tbs
plaintiff then was and now is entitled
TO have and receive the sum of $500,
as her share and portion thereof, and
said money is the separate property Ct
plaintiff.
That ever since said November !
1902, said defendant has and now does
fail, neglect and refuse to pay plaintiff
/ her share Of said money or any par1
thereof
WHEREFORE, plaintiff prays iudg
ment against defendant for the sum q
Five Thousand Dollars, (s5000) will
interest thereon at seven per cent PEI
annum since November Z. 1902 and fo1
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 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 pc,
ton Of her share of the estate befor
it is distributed, and thirdly, that ther
8 :. defect or misjoinder of partie
| defendant because the complaint show
that the defendant is the executris
: of the estate of Charles Kaiser. de
/ ceased.
| OPINION.
t. The two matters for our determine
ton are whether the defendant is liza
BILE individually on a contract made b.
her personally and before her appoint
ment as executrix. by which she az
redd that after her appointment sn
would, without any decree of distrlbt
ton pay to the plaintiff and the othe
legatees named in the will the amour
. IF their respective proportions of an
money which might come into he
hands in excess of Five Thousand Do
lars. and if she is SO responsible. tn
: question. arises. secondly, whether uh
| plaintiff 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 defen,
e ant. If the action were against the r.
0 spondent as eXecutrix, there would J,
Il force in the contention of her couns,
e that she had no authority to enter int
{ contract binding the estate, that mo,
d ey could not be taken out of the e
e tate to meet such an agreement an
|. that the statute relating to distribute
II must be followed, but the suit is NJ
+ brought and no relief is asked again
d the defendant in her representa-,
If capacity. nor against the estate N
q. under the statute and as the person
=. Judgment sought. and execution ther
on could not affect or reach the mon.
. or property of the estate. the matt
D. for consideration is not confined to Il
broad proposition as urged in the q
y. murrer whether an heir or legatee q