171 P. 161 | Nev. | 1918
Lead Opinion
By the Court,
The complaint alleges that plaintiff, Phœbe J. Guisti, is the widow of Lawrence Guisti, who, at the time of his death in October, 1907, was a resident of Beatty, Nye County, Nevada; that deceased, at the time of his death, was the owner of a dwelling-house and the lot upon which it was situated, and certain other real estate and personal property. The complaint also alleges:
“That at the time of the erection of said building and the furnishing said saloon said Lawrence Guisti did not*353 have funds sufficient to pay for the erection of said building and purchasing of said bar and bar fixtures, iron safe, cash register, piano, slot machine, and gambling layouts and liquors and cigars for said saloon, and solicited this plaintiff to contribute toward the erection of said building and the paying for said bar, bar fixtures, furnishings, liquors, and cigars for said saloon. That pursuant to said request this plaintiff did contribute the sum of three thousand dollars ($3,000) toward the erection of said building and the paying for said bar, bar fixtures, furnishings, iron safe, cash register, piano, slot machine, gambling layouts, cigars, and liquors for said saloon. That said Lawrence Guisti nor any other person has ever paid or returned said money or any part thereof to this plaintiff.”
That the plaintiff and the defendant (father of the deceased) are the sole heirs at law of the deceased; that the defendant, conspiring to cheat and defraud plaintiff, purchased of the Bullfrog Bank and Trust Company a note of deceased for about $3,000, which purported to be secured by a mortgage upon certain real and personal property of the deceased, which note it is alleged was paid by the deceased prior to his death.
It is also alleged that the defendant, designing to cheat and defraud plaintiff, induced plaintiff to waive her right to be appointed administratrix of said estate, and as a consideration for such waiver promised and agreed that plaintiff should have a lien upon the real estate and personal property covered by the mortgage to the bank above mentioned, to secure the payment of the alleged indebtedness to her of $3,000; and that plaintiff, having great faith and confidence in the defendant, did execute such waiver, and nominate and request that the defendant be appointed to administer upon said estate, and that thereafter he was appointed by the court as administrator thereof and thereafter qualified as such. Other allegations of fraud are contained in the complaint, but, taking the view which we do of the case, it is not necessary to state them.
It is further alleged that upon her petition the court
By the prayer of the complaint plaintiff asks that the decree of final distribution in the matter of the estate of Lawrence Guisti, deceased, and the decree settling the final account of the administrator, and such other orders as may interfere with granting full relief to plaintiff, be set aside and annulled; that the defendant be declared a trustee for the benefit of plaintiff, and that plaintiff recover judgment against the defendant for $3,000, the amount contributed by her, as alleged in the complaint, and in a further sum to cover the monthly allowance of $130, and that the same be made a lien upon the real estate bought by defendant from said estate, and for general relief.
Defendant filed a demurrer to the complaint, for the reason, among others, that it did not state a cause of action, which being overruled, an answer was filed. By his answer defendant denies that plaintiff is the widow of the deceased; denies that the deceased contributed any money as alleged in the complaint; denies that he solicited plaintiff to renounce her right to administer upon the estate of the deceased; denies that he told her she did not need an attorney, or that he would see that her family allowance and her claim of $3,000 would be paid; denies all allegations of fraud on his part, and pleads affirmatively the indebtedness of the Bullfrog Bank and Trust Company, its assignment to him, and all of the various orders in the matter of the estate of Lawrence Guisti, deceased, including the approval of his final report and the order of his discharge as administrator.
Defendant also alleges that the cause of action pleaded by the plaintiff is barred by section 4967, Revised Laws.
It is also alleged that if the promise sued on was made at all, it was made with reference to the administration of the said estate; that it was a specific promise to answer for the debt of said intestate out of the estate of defendant; that said alleged agreement was not, nor was any note or memorandum thereof, in writing, ever made or signed by defendant, or by his agent.
Plaintiff filed a reply, pleading estoppel on the part of defendant to deny that she was the widow of Lawrence Guisti, deceased.
The case was tried by the court without a jury,, and the court made its findings of fact, whereby it found all of the material allegations of the complaint to be true, except the allegation that the note to the bank had been paid, and entered a decree setting aside, annulling, and canceling the decree of final distribution in the matter of the estate; also the order approving the final account of the administrator; also the order confirming the sale of the real estate and personal property under the mortgage. The court rendered judgment in favor of plaintiff and against defendant in the sum of $3,000, the amount alleged to have been contributed by plaintiff to deceased, as alleged in the complaint, and in the further sum of $3,010 on account of the monthly allowance of $130. It was further ordered that said judgment be made a lien upon the property bought by defendant at the administrator’s sale, and that the same be sold to pay said judgment and costs.
On motion for a new trial the court modified its judgment, so that, instead of giving judgment for $3,010 on account of the allowance of the court, it was given for a sum aggregating twelve monthly payments, for the reason that our statute provides that when an estate is insolvent such allowance cannot run for more than twelve months (Rev. Laws, 5958); and it was further adjudged that the defendant is a trustee and holding the
This appeal is from the original judgment, from the judgment as modified, and from the order denying the motion for a new trial.
Before entering upon a consideration of the merits of the case, it becomes necessary that we dispose of a motion to dismiss the appeal. This motion is based upon two grounds: First, because a transcript of the record was not filed within thirty days after the taking of the appeal had been perfected, as provided in rule 2; and, second, for the reason that “no transcript on appeal has ever been served” upon respondent.
“Exceptions or objections to the transcript, statement, the undertaking on appeal, notice of appeal or to its service or proof of service, or any technical exception or objection to the record affecting the right of the appellant to be heard on the points of error assigned, which might be cured on suggestion of diminution of the record, must be taken at the first term after the transcript is filed, and must be noted in the written or the printed points of the respondent, and filed at least one day before the argument, or they will not be regarded.”
From a reading of this rule, it is apparent that it is the policy of this court to give the appellant every reasonable opportunity to be heard upon the merits and that an appeal should not be dismissed where an error or oversight can be corrected without injury to the opposite party, where appellant desires to make such correction.
We come now to a consideration of the merits of the case. This action was brought to recover upon two alleged claims, one being based upon the allowance by the court in the matter of the estate of Lawrence Guisti, deceased, of the so-called monthly allowance of $130, and the other upon the so-called contribution by plaintiff to Lawrence Guisti in his lifetime of the sum of $3,000. The complaint is replete with allegations of fraud alleged to have been committed by defendant as administrator of the said estate, all of which alleged fraudulent acts, it is claimed, go to aid in the establishment of both causes of action.
“A ‘contribution/ then, is ‘the act of giving to a common stock, or in common with others, that which is given to a common stock or purpose/ etc. (Webst. Diet.) ”
The New Standard Dictionary defines “contribute” as follows:
*359 “To give or furnish, in common with others, for a common purpose; supply as part of a common stock; give in aid of some object.”
See, also, Century Diet.; Black’s Law Diet. 2d ed.
From these definitions of the word “contribute,” it is clear that the complaint does not allege a loan by the plaintiff to Lawrence Guisti.
“Every sale made by a vendor of goods and chattels*360 in his possession, or under his control, and every assignment of goods and chattels, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of things sold or assigned, shall be conclusive evidence of fraud, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good faith.”
For the reasons given, it is ordered that the judgment and order appealed from be, and the same are hereby, reversed.
Rehearing
On Petition for Rehearing
Rehearing denied.