Hendricks v. Osman

PEEK, J.

This is an appeal from a judgment of dismissal entered after plaintiff declined to amend his complaint following the order of the trial court sustaining defendants’ general and special demurrer thereto.

By his complaint plaintiff alleges that he is the nephew of Stella Traub, deceased; that by her will she devised certain

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real property to her husband, Herman Traub, which will provided in part (and it is to be noted that this is the only portion of the will set out in the pleading): “It is not my intention hereby to restrict my husband in any way concerning said ranch, but he shall have the right to sell, dispose of, or encumber the same, but if the title thereto is still vested in him at the time of his death, it shall go to my said nephew,” plaintiff and appellant herein; that Herman Traub, by the terms of said will was named executor of her estate; that in 1931 Stella Traub died, and thereafter her estate was administered by Herman Traub as executor; that he falsely and fraudulently alleged that he was the sole devisee under said will; that’he gave no notice to plaintiff of the terms of the will or the death of Stella Traub or the pendency of the probate proceedings; that a decree of distribution was entered in said proceedings distributing the said real property absolutely to Herman Traub without mention of any interest plaintiff might have therein; that on August 14, 1944, Herman Traub died; that his estate is being administered by respondent Augusta Osman, the duly appointed and qualified executrix thereof; that at the time of the death of Herman Traub title to the ranch was still vested in him; and finally, that “defendants Eeno Buchignani and Annie Buchignani claim some interest in said real property by reason of a purported contract of purchase and sale, and plaintiff herein alleges that said contract constitutes a cloud upon the real property, but that if the said claim be valid it be recognized and established by decree of Court.” The complaint concludes with a prayer that defendants be adjudged to be holding the property in trust for plaintiff, that the trust be declared to be terminated, and that the rights of the Buchignanis be adjudged and determined by the court.

To this complaint defendants demurred charging that it failed to state facts sufficient to constitute a cause of action and that it was uncertain and unintelligible in certain alleged particulars. The trial court sustained the demurrer with leave to plaintiff to amend within ten days. Plaintiff elected to stand upon his complaint rather than amend, and judgment of dismissal was entered.