Parsley v. Superior Court

MOORE, P. J.

Petitioner, Pearl Aldana Parsley, requests a writ of prohibition against the respondent court to stay the trial of an action. Petitioner is the executrix of the estate of her decedent sister, Lucile Melissa Hare, who deceased January 12, 1938. Petitioner was qualified as the executrix of the estate of said deceased on June 14, 1938, and as such executrix took into her possession all of the assets of the estate. In order to quiet title in himself and to establish property as community property and to recover personal property and to procure an accounting, the surviving husband of Lucile, Everett Franklin Hare, filed his action in the Superior Court of Los Angeles County on the 8th day of December, 1938. In his first complaint he sued the petitioner both hi her capacity as executrix of the estate and individually, and he joined a sister and brother of petitioner, to wit, Theresa Irene Parsley and Joseph Arthur Parsley. After successive demurrers

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had been sustained, said Hare filed his third amended complaint, omitting therefrom petitioner’s name as executrix. The third amended complaint, after setting out that the decedent bequeathed to plaintiff all of the separate property of decedent to enjoy during his lifetime, including the rents, issues and profits of certain real property and the income from personal property, which was for the support and maintenance of the plaintiff, alleges that plaintiff’s deceased wife, pursuant to a mutual agreement between herself and defendants, entrusted certain personal property to defendants to invest for the benefit of decedent, to be accounted for upon the request of the decedent, and the said decedent subsequently turned over other property to defendants to be similarly invested, the identity and amount of which is unknown to plaintiff; that part of same was the separate property of decedent, part of it was community property of decedent and plaintiff; that several years prior to the death of decedent, defendants had in their possession and under their control certain real and personal property, some of which was the separate property of decedent and some was the community property of plaintiff and decedent; that upon the death of decedent the property became and now is the property of plaintiff; that plaintiff is entitled to the possession thereof; that although decedent left a will, the will did not attempt to dispose of any community property of decedent and plaintiff.