Mull v. Van Trees

50 Cal. 547 | Cal. | 1875

Dissenting Opinion

McKinstry, J., dissenting:

I dissent. It is clear that there was no moral consideration for the note given by tho wife after her husband’s death, so far as it represented the balance unpaid of the note of the deceased.

Nor was there any valuable consideration. The Statute of Limitations had run against any action on the note of the husband prior to his death, and it would have been the duty of the executrix to plead the statute as against such an action. The note of the husband was valueless, except so far as the contemplation of a contingency that the executrix might violate her trust, and permit a judgment to be taken against the estate, may be supposed to have given it value. But it was in her power, and it was her sworn duty, to prevent such judgment. She had no legal option to plead or not plead the statute. The plea was not a personal privilege to be employed at her discretion. The law imposed on the executrix the obligation of pleading the Statute of Limitations, and I think the courts are not authorized to assume a violation of the law, for the purpose of giving a possible value to the note of the husband as a claim against the estate.

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Lead Opinion

By the Court:

The court below erred in its conclusion of law from the facts found. On the findings of fact the plaintiff was entitled to judgment.

Judgment reversed and cause remanded, with an order to the court below to enter judgment for the plaintiff.