Abbey v. Schaefer

California Court of Appeal Jan 4, 1952 No. Civ. 4426Published

Before: Mussell

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Holding. The court held that an action against an executrix in her official capacity for the recovery of personal property or money belonging to an estate must be tried in the county having jurisdiction over that estate, pursuant to Code of Civil Procedure section 395.1.

Issues

Whether an action against an executrix in her official capacity for the recovery of property is subject to the venue requirements of Code of Civil Procedure section 395.1.
Whether the defendant was sued in her individual or representative capacity for the purposes of determining proper venue.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“When a defendant is sued in his official capacity as executor, administrator, guardian or trustee, on a claim for the payment of money or for the recovery of personal property, the county which has jurisdiction of the estate which he represents”

[555]

MUSSELL, J.

Plaintiff, E. B. Abbey, as administrator with the will annexed of the estate of Mortimer F. Babcock, deceased, commenced this action in Orange County against Clara T. Schaefer, as executrix of the last will and testament of Cora Cline Babcock, deceased, to quiet title to personal property and to recover the sum of $31,433 alleged to be in the possession of the defendant and listed by her as an asset of the estate of Cora Cline Babcock, deceased, in probate proceedings filed in said estate. The funds so listed are the proceeds of bank accounts which were formerly in the joint names of Cora Cline Babcock and Mortimer F. Babcock, and held by them as joint tenants.

Cora Cline Babcock died on April 10, 1950, and Mortimer P. Babcock died on June 4th of the same year. Plaintiff claims all of said money as the sole and separate estate of Mortimer P. Babcock, deceased.

Defendant, Clara T. Schaefer, resides in the county of Los Angeles and appeals from an order denying her motion for change of venue to the county of her residence.

It is alleged in the first cause of action of the complaint, among other matters:

“That the defendant Clara T. Schaefer as Executrix of the estate of Cora Cline Babcock has taken, or is in constructive possession of, the said money in the sum of $31,443.00, and claims the same as a part of the estate of Cora Cline Babcock, deceased, and further claims that plaintiff has no right of possession thereof, and that the estate of Mortimer P. Babcock, deceased, has no right, title or interest therein.”

And in the second cause of action:

“That the defendant is indebted to the plaintiff, at and within the County of Orange, State of California, in the sum of $31,443.00 for money had and received by the defendant to and for the use of the plaintiff.

“That no part of said sum of $31,443.00 has been paid though the plaintiff has demanded the same from the defendant.”

The prayer is that the defendant be required to set forth the nature of her claims to said money and that she be restrained and enjoined from claiming or asserting any right, title or interest thereto; that it be decreed by the court that said funds were the separate property of Mortimer F. Babcock

Abbey v. Schaefer

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MUSSELL, J.

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