147 P. 215 | Cal. Ct. App. | 1915
The action is claim and delivery to recover possession or the value of certain articles of jewelry, of the agreed value of three hundred and sixty dollars, alleged to belong to decedent's estate, which defendant wrongfully withholds from plaintiff. Plaintiff's intestate died on April 24, 1895, and, on August 21, 1911, more than sixteen years thereafter, plaintiff was appointed administratrix of the estate of said deceased.
It is alleged in the amended complaint that, on the tenth day of May, 1895, and after the death of decedent, defendant wrongfully took possession of said personal property "and has ever since the tenth day of May, 1905, unlawfully and wrongfully withheld all of said goods and chattels"; that no administration upon the estate of said deceased "was ever had except as hereinbefore alleged"; that plaintiff is the daughter of deceased and, at the time of the death of deceased, plaintiff was thirteen years old. *422
There are certain averments in the complaint which appellant contends were intended to charge defendant as a trustee, either voluntary or involuntary. Respondent, however, claims that the action is simple claim and delivery and in this we agree with respondent.
Among other defenses, subdivision 3 of section
Unless some statute can be found making an exception in cases such as this, the action, in our opinion, is barred by the section of the code above cited. The only section to which our attention has been drawn by respondent is section
Respondent is mistaken in assuming that adverse possession in the Tynan v. Walker case was taken before Bell died. The facts stated show that Walker went into possession at the request of Bell and after the latter's death Walker set up a claim in his own right and this was the right litigated. Besides, it was held immaterial whether the right of action accrued before or after the death of Bell since the exception related exclusively to cases where the action accrued against the deceased, there being no exception covering the case of an action accruing in his favor.
Respondent cites several California cases involving section
The question in the Bullard case arose under section
In a concurring opinion by Chief Justice Beatty, in the Bullard case, he places his concurrence on the doctrine stated in Smith v. Hall,
Respondent cites 18 Cyc. 915 and 916, and some cases from other states which appear to give the rule as contended for by her, but we do not find it necessary to examine the statutes elsewhere. Tynan v. Walker,
The judgment is reversed.
Hart, J., and Burnett, 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 March 25, 1915.