Wilson v. Stoudamire

DRAPEAU, J. pro tem.

Plaintiffs’ first amended complaint alleges that they are daughters of a decedent, that one of the defendants is the widow of said, decedent, and that these three persons are the only heirs at law; that the decedent owned certain real property described in the complaint, that the plaintiffs own and are entitled to the possession of an undivided two-thirds thereof and that the defendants claim title thereto adversely to the plaintiffs, which claim is without right.

Answer was filed and the case came on regularly for trial. After the first witness was sworn, objection to the introduction of any evidence was sustained, and the case was dismissed, upon the ground and for the reason that the amended complaint failed to allege facts sufficient to constitute a cause of action.

Counsel for appellants cites no case in support of the appeal; counsel for respondents cites

Pryor

v.

Winter,

147 Cal. 554 [82 P. 202, 109 Am.St.Rep. 162], There the Supreme Court held that future interest may not be defeated or barred by alienation or other act of an owner of intermediate interests, and that the statute of limitations does not begin to run against remaindermen in favor of the grantee of a life estate until the life estate has terminated. Respondents quote a portion of the opinion in the Pryor case at page 558, reading as follows:

“For instance, in Section 1452 of the Code of Civil Procedure it is provided that the heirs or devisees may maintain an action for the recovery of the real estate against any one except the administrator or executor; but surely that provision could not be considered as applicable to a remainderman, although he may have received his estate through a devise, and, therefore, is literally in the general category of ‘devisees’; it means only those heirs and devisees who have a present right of possession, and, therefore, a present cause of action as against every one except the administrator.”

[644]

There is no dearth of California authority to settle the problem. In 1872 the following language was enacted by our Legislature as part of Code of Civil Procedure, section 1452.