118 Cal. 499 | Cal. | 1897
Appeal from decree of distribution. The controversy arises out of a certain contract of separation between deceased in her lifetime and her surviving husband, appellant. The court found that the husband had no interest in the wife’s estate, she having died intestate. The court also found that shortly prior to May 29, 1884, the said deceased commenced an action' against her said husband for divorce and division of the property: that a compromise was agreed to on said day last named, pursuant to which the agreement in question was entered into
The sole question presented by appellant is, "whether or not the separation agreement in question amounts to a waiver or release by appellant of his right to succeed to all or any portion of his wife’s estate.”
The agreement is as follows:
“This agreement, made the 29th day of May, 1884, between Oadwaladcr Jones, of Sutter county, California, the party of the first part, and Lavina Jones, his wife, of the same place, the party of the second part, witnesseth, that whereas differences have arisen between said parties, and they have agreed to live separate and apart from each other,
“Therefore it is agreed by said first party that said second party shall receive from the sale of the homestead of the parties hereto the sum of $2,850, and one-half of the net proceeds of all the personal property belonging to said parties, and one bay mare named Kittie, and that said second party shall be released from every and all obligations of every kind and character, and shall not be held liable for any of the debts of said first party.
“In consideration whereof, said second party agrees that she accepts in release and full payment from said first party the foregoing sum of money, for any and every demand, claim, obligation, debt, and liability, and does by these presents agree to release him, said first party, from all and any debt which she may now owe, or which may hereafter be contracted by her.
“And it is expressly understood and agreed by both parties hereto that each party is hereby released and absolved from all obligations and liability for the future acts and debts of each other, and that said first party shall retain and have one bay filly, Daisy, and that the remainder of said personal property shall be sold at auction within three weeks from this date, and that on the day of the sale the auctioneer shall divide the net proceeds of such sale equally between said first and second parties.”
If this contract is to be construed as an equitable assignment of the husband’s interest in the wife’s estate, it falls short of accomplishing this object. To effect such result, “there must be on the face of the instrument expressly, or collected from its provisions by necessary implication, language of present transfer applying directly to the future as well as the existing property, or else language importing a present contract or agreement between the parties to sell or assign the future property.” (3 Pomeroy’s Equity Jurisprudence, sec. 1390.)
We have examined the cases relied upon by respondents. They are Labbe v. Abat, 2 La. 553; 22 Am. Dec. 151; Bratton v. Massey, 15 S. C. 277; Dillinger’s Appeal, 35 Pa. St. 357; Hitner’s Appeal, 54 Pa. St. 110; Wallace v. Bassett, 41 Barb. 92; Rains v. Wheeler, 76 Tex. 390; Scott’s Estate, 147 Pa. St. 102. We do not feel called upon to point out wherein the essential features of these cases, and the contracts under which they arose, are divergent from the case before us. Suffice to say that they are plainly distinguishable from this case. They apply to cases such as In re Davis, supra, and to other cases cited from our own reports in the well-considered opinion of Mr. Justice Van Fleet filed in the Davis matter. But, rightly interpreted, they only emphasize the importance of holding strictly to the views we have endeavored to briefly present. In Scott’s Estate, supra, most relied upon by respondents, the language is, “forever discharge the said John Scott, his executors, administrators, etc., from all lia
2. In their reply brief respondents raise the question that the attorney for appellant, Mr. C. H. Oatman, had no right to act as such, for the reason that he was previously, and is still, the attorney for the administrator.
We do not think the public administrator, making or having no claim upon the estate beyond his commissions, and not having filed the petition for distribution nor taken part at its hearing, was an adverse party within the meaning of this section. (Senter v. De Bernal, 38 Cal. 637.) Neither was he a necessary party to the appeal. It has been several times held that he cannot appeal from an order of distribution. (Bates v. Ryberg, 40 Cal. 463; Estate of Wright, 49 Cal. 550; Estate of Marrey, 65 Cal. 287.) He is not “an aggrieved party” who has the right of appeal under section 938.of the Code of Civil Procedure. (Goldtree v. Thompson, 83 Cal. 420.) He is there spoken of as an indifferent person between the real parties in interest. (See, also, Estate of Welch, 106 Cal. 427.) As to the relation of the administrator to the estate see Roach v. Coffey, 73 Cal. 281, and Rosenberg v. Frank, 58 Cal. 420. The reasons given why. an administrator may not appeal from a decree of distribution 'are equally persuasive against his right to be heard, either voluntarily or involuntarily, as respondent, and also as to his being a necessary party to the appeal.
Whether an attorney, who is attorney for an administrator, may act for one of the heirs as against other heirs, in an adversary proceeding relating to the property of the estate, is a question which would depend upon the circumstances of the particular case. We can conceive of situations where it might be improper—for example, where the administrator is an heir at law —but in the case here no disqualifying relation is shown between
The judgment should be reversed.
For the reasons given in the foregoing opinion the judgment is reversed.