183 P. 214 | Cal. Ct. App. | 1919
Frances E. Norton, the surviving widow of G. N. Norton, appeals from a judgment entered upon an order sustaining a demurrer to her complaint in a suit against the estate of G. N. Norton, upon a claim rejected by the judge sitting in probate.
The essential allegations of the complaint are summarized as follows: On July 4, 1915, leaving an estate in excess of ten thousand dollars, G. N. Norton died testate and indebted to the plaintiff in the sum of one thousand dollars *616
per year, in monthly installments of $83.33, commencing July 4, 1915, under a contract set forth as an exhibit to the claim, which by proper reference is made part of the complaint. July 21, 1915, the plaintiff was appointed and qualified as special administratrix of the estate, and served as such until September 17, 1915, when she was appointed, and since which time she was and continued to be at the time of filing suit, the administratrix of the estate with the will annexed. On March 16, 1916, within the time required by and in accordance with sections 1493, 1494, and
"This instrument made and dated at San Francisco, California, on the thirtieth day of December in the year of our Lord one thousand nine hundred and twelve by me the undersigned is intended to be not only a contract but also an irrevocable olographic will (the same being an instrument that is entirely written, dated and signed by the hand of myself) to the extent of the provisions thereof, it being *617 my purpose by virtue of the provisions of this instrument to secure to my wife, Frances E. Norton, the payments hereinafter specified out of my estate for and during her natural life if she shall continue to be my wife and be living with me as such at the time of my death. Making reference to the foregoing I hereby promise, agree, undertake and guarantee that after my decease my personal representatives shall and will pay out of my estate to my wife, Frances E. Norton, for and during her natural life the sum of one thousand dollars ($1000.00) per year in monthly installments of eighty three dollars and thirty three cents ($83.33) each if she shall continue to be my wife and be living with me as such at the time of my death, but not otherwise. I hereby expressly provide that upon my death all of my estate of every name, nature, character and description and wheresoever situated shall stand charged for the payments aforesaid if my said wife shall then be entitled to such payments according to the provisions aforesaid.
"In witness whereof I have written, dated and signed the foregoing by my own hand as above stated.
"G. N. NORTON."
Since the demurrer was sustained without leave to amend, the grounds of ambiguity and uncertainty may be disregarded. The other three grounds of demurrer were that the court had no jurisdiction of the subject matter of the action, that there was a defect of the party defendant, and that facts sufficient to constitute a cause of action were not stated.
In the brief on behalf of the respondent the demurrer is sought to be sustained. No consideration can be given to statements of fact not shown by the complaint, but made in the brief. They may be pertinent, if proved, on a trial of the case, but upon the demurrer ruling the court is confined to the facts stated in the complaint.
[1] In regard to the claimed defect of parties, it is said: "There is no entity or being in the defendant and respondent submits that the court could not render a judgment against respondent." The statute provides that if the administrator is a creditor of the decedent, his authenticated claim shall be filed with the clerk, who is required to present it to the judge, and if it is rejected, "action thereon may be had against the estate by the claimant, and summons *618
must be served upon the judge, who may appoint an attorney, at the expense of the estate, to defend the action." (Code Civ. Proc., sec.
The question of jurisdiction of the subject matter and the sufficiency of the statement of facts appear to be merged in the respondent's brief. [2] Reliance is placed on the application of sections of the old Practice Act to a claim upon a mortgage lien, in a case where it was held that the word "claims," as used in the act, referred only to such debts as might have been enforced against the decedent in his lifetime by a personal action for the recovery of money. (Fallon v.Butler,
[3] The only other matter relied on by respondent is that the instrument on which the claim is based is a will and not a contract. Cases are cited in support of the rule "that where an instrument does not operate inter vivos, but is made to depend for its whole operation upon the event of the death of the maker to consummate it, then it can only take effect as testamentary." (Carey v. Dennis,
The judgment is reversed, with directions to the trial court to enter an order overruling the demurrer to the complaint, and for such further proceedings as are not inconsistent herewith.
Langdon, P. J., and Haven, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 14, 1919.
All the Justices concurred, except Wilbur, J., who was absent. *620