Levy v. Cytron

WHITE, J.

This is an appeal from a judgment of dismissal entered after a demurrer to plaintiff’s complaint was sustained and plaintiff failed to amend within the time allowed.

Plaintiff alleges in his complaint:

“This plaintiff and his mother, Carrie F. Levi, were the ancient occupants of the following described property. . . .

“The said Carrie F. Levi died testate ... on the 3rd day of October, 1942, . . . and by the terms of her will, duly

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admitted to probate in this court after contest, this plaintiff and Clarence Levi became the fee simple owners of the within said real property.

“. . . and the entire files and records (of said estate of Carrie F. Levi), by reference, are incorporated and made a part of this complaint.

“That prior to the admission of said will to probate and while said contest was pending and undetermined, or about November 12th, 1943, one Agnes Levi, in her personal descriptive title of Special Administratrix with General Powers’ was claiming as a lone contestant against said will, some individual interest in said property and thereupon at the last said date deeded to the within named defendants all of her purported individual interest in said land. . . .

“Thereafter . . . this court then determined, that the said contestant, Agnes Levi take nothing by her contest and thereby the deed of the grantor to the within defendants conveyed no title, since the said Agnes Levi was not an heir of the decedent neither did she succeed to any part of the estate or have any interest whatsoever therein.”

Up to this point it would appear that the deed given by Agnes Levi purported to transfer her individual interest in the property. However, the complaint continues as follows:

“On August 29th, 1945, a decree settling the final account and distribution was duly entered . . . and has long since become final. This plaintiff is the real owner of the within stated property . . . but . . . the within named defendants did wrongfully and unlawfully enter upon said premises . . . and unlawfully withhold this property from this plaintiff. . . .