85 Cal. 137 | Cal. | 1890
Lead Opinion
This is a bill in equity against the executors of the last will and testament of William Walkerly, deceased. Decedent was the sole devisee of Martin Walkerly, deceased, and as such received on distribution the entire estate left by said Martin, amounting to about two hundred thousand dollars. It is alleged, and the court finds, that he accepted and received this estate subject to a parol trust to pay out of said estate to the plaintiff in this cause the sum of ten thousand dollars. William Walkerly died without having executed the trust by paying the said ten thousand dollars, or any part thereof, and his estate passed to his executors, subject to the trust.
This bill is filed to enforce the trust against the estate and the executors as to the remaining five thousand dollars. The court finds all the facts in favor of the plaintiff, and specially finds that the plaintiff did not intend to waive his claim to the balance of five thousand dollars of his ten-thousand-dollar claim by any of the acts alleged in the complaint and answer herein, and has never received any money whatever from the defendants or the estate of William Walkerly. It also finds that the claim is not barred by the statute of limitations, and is not stale. It then finds, “ as conclusion of law, from the foregoing facts, in connection with the admissions of the pleadings herein, that the acceptance by the plaintiff herein of the partial allowance of the claim presented to the defendants prevents his recovery in this action, and that defendants are entitled to judgment for costs herein.”
The case comes up on the judgment roll. Under the admissions of the pleadings and the facts found, we see no good reason for this conclusion of law. The plaintiff might have filed his bill to declare and enforce the entire trust for the full sum of ten thousand dollars, no part of the same having yet been paid; but the executors having acknowledged it, and, in conjunction with the judge of the court sitting in probate, given it the force and effect of a judgment payable in due course of administration of a perfectly solvent estate to the extent of one half of the amount, he seeks in this action only to have it declared and enforced as to the remaining half. Under
“ Equity is not bound to the strict legal rights of the parties, but will take into consideration all the circumstances, in order to arrive at the justice of the case.” (Johnston v. S. F. Savings Union, 75 Cal. 134.) In this case the executors might with propriety have disallowed the entire claim, on the ground that it -was one to be established in equity, if at all. If they had done so, the action would not have been at law, as in the case of a simple creditor, but as now, in equity, to enforce the trust for the full amount. They having, however, allowed a part of the claim, it is sought to enforce all that it remains necessary to enforce to protect the rights of the plaintiff in the only place where it could be done, — a court of equity. We think he has the same right to relief as to this part that he would have had as to the whole, if his claim had been rejected in toto, and in such case there can be no question that under these findings he would have been entitled to judgment and decree in his favor.
Dissenting Opinion
I dissent. An entire demand cannot be thus split up into several causes of action. The claim allowed and filed for five thousand dollars has the force of a judgment (Estate of Glenn, 74 Cal. 567), and is a bar to this action for the balance. (Zirker v. Hughes, 77 Cal. 235; Code Civ. Proc., sec. 1503.)
