King v. Wilson

WILSON, J.

This is an appeal from a judgment following the sustaining of a demurrer to plaintiff’s second amended complaint without leave to amend.

The defendants are Wilson, as executor and individually, together with one Brewer and wife. Plaintiff alleges that she was the lawful wife of decedent King at the time of his death; he left no relatives or heirs in California other than plaintiff; he left real and personal property valued at approximately $150,000; during his lifetime he conveyed property to Wilson and Brewer upon their agreement to reconvey it upon demand; the property is an asset of the estate and Wilson and Brewer held title thereto as trustees; Wilson as executor filed an inventory in the proceeding to probate decedent’s will showing the value of the estate to be $200. The prayer of the pleading is that it be decreed that defendants Wilson and Brewer hold title to the property in trust for the benefit of, and that they be compelled to reconvey it to, the estate.

The only grounds of the demurrer argued upon the appeal are (1) that the second amended complaint does not state facts sufficient to constitute a cause of action, (2) that plaintiff has not legal capacity to sue. The demurrer was properly sustained" on both grounds.

An action for the recovery or possession of property belonging to an estate may be maintained by the executor or administrator. (Prob. Code, § 573.) An heir cannot maintain

[214]

such an action for want of capacity to sue and for inability to state a cause of action.

(Holland

v.

McCarthy,

177 Cal. 507, 509 [171 P. 421].) The superior court sitting in probate has jurisdiction to determine title to property when the interest of the executor as such is adverse to his interest as an individual, but is without power to try a question of title as between the estate and strangers thereto.

(Stratton

v.

Sxiperior Court,