Meier v. Hayes

STURTEVANT, J.

This is an appeal from a judgment foreclosing a mortgage. The judgment was rendered against Belle 0. Hayes as an individual, and also against her as executrix of the estate of John W. Brunton, deceased.

After being served with summons and complaint, Belle 0. Hayes, as executrix of the estate of John W. Brunton, deceased, appeared and filed a general demurrer. At the same time, as an individual, she filed an answer. On being presented, the demurrer was overruled and the executrix stated that she would file an answer similar to the answer she had filed as an individual.

The first point made by the defendant as executrix is that the trial court erred in overruling her demurrer. In making that contention she calls to our attention that the complaint is wholly silent regarding anything contained in the will of John W. Brunton authorizing his executrix to borrow money or mortgage his estate, and regarding an application to the probate court authorizing the executrix either to borrow moneys or to execute a mortgage on the property of the estate for any purpose. The mortgage which was pleaded

in haec verba

is also entirely silent on those subjects. For these reasons the defendant claims the complaint did not state a cause of action against her as executrix. The plaintiff concedes that his complaint might have been vulnerable if the defendant had filed a special demurrer, but not in the face of a general demurrer. That contention has been ruled against him.

(Fish

v.

McCarthy,

96 Cal. 484 [31 Pac. 529, 31 Am. St. Rep. 237].) He also contends that the record does not show what point the demurrer was intended to reach ’ nor what argument was made in the trial court. That point is without merit. If for any reason the demurrer should have been sustained, the demurrant was entitled to present that reason to this court. (Code Civ. Proc., sec. 434;

Hurley

v.

Ryan,

119 Cal. 71, 72 [51 Pac. 20].) Again, the plaintiff says he stipulated in the trial court that Belle 0. Hayes as executrix might set up the identical defense in her answer, and he argues that therefore the executrix was not injured. It is a sufficient reply to state that the executrix was not bound to accept the stipulation. Her contention presented a question of law, not a question of fact to be pleaded in her