Ilse v. Burgess

NOURSE, P. J.

Plaintiff sued as executor of the estate of E. A. Hurd for wages for services alleged to have been rendered the deceased, C. W. Burgess. The demurrer to the complaint was sustained and he has appealed from the judgment of dismissal.

The complaint alleges: the claimant performed special services for the deceased as his personal secretary, in addition to her other employment, from December, 1904, to November, 1928; no agreement was made as to wages, but the reasonable value of her services was $25 a month; in December, 1928, the claimant required hospitalization, and

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the deceased paid the expense thereof, amounting to over $1700; thereafter the claimant was employed by deceased at a fixed salary of $75 a month, which was regularly paid to her; the total amount claimed due was the sum of $7,200 less the amount paid for hospitalization. To avoid the plea of the statute of limitations, the plaintiff alleges that the deceased promised to pay the claimant when she “needed the money”, and that he would hold the entire sum in trust for her to be paid to her under such conditions. The decedent died in April, 1936. The claim was filed against his estate in November, 1936. The claimant died in February, 1937, and this suit is prosecuted by her executor. Besides the general demurrer, special pleas of laches and the statute of limitations were interposed.

The pleading fails to establish an enforceable trust because no fund was created or determined during the lifetime of the trustee, and because a debtor cannot be a trustee for his creditor where the only relation between the parties is that of obligor and obligee. As to the -first proposition, the complaint fails to allege that the deceased had any funds during the period of employment with which to pay the debt, or that any funds were deposited by him in bank, or otherwise set apart and held by him in trust. In simple language, it merely alleges that the debtor postponed payment of his debt until a future date, that such debt was never agreed upon or settled between the parties, and that the debtor promised to create a trust for the benefit of the creditor. No trust is created under such circumstances. (Molera v.

Cooper,

173 Cal. 259, 262 [160 Pac. 231].)