Lisle v. Ragle

MARKS, J.

Plaintiff, who formerly was Blanche E. Green, is the daughter of Lottie L. Martin, deceased, who was formerly Lottie L. Green. A. D. Green, the father and husband of the two, died leaving them as his heirs. On September 2, 1926, the daughter and the mother entered into a written contract whereby the daughter sold her interest in the estate to her mother for $20,000, payable $500 cash, and the balance in instalments of $125 per month, without interest. These payments were made up to and including the one due in January, 1934, and $10 was paid on account of the February instalment.

Mrs. Martin died on March 22, 1934, and defendant was appointed and qualified as administrator of her estate.

On September 18, 1934, and within the time allowed by law plaintiff filed her claim against the estate for the balance unpaid on the contract, both accrued and to accrue. Twenty days elapsed during which defendant failed to approve or reject the claim and plaintiff elected to treat it as rejected and filed this action on October 16, 1934. The trial court rendered judgment in favor of plaintiff for $1750, which had accrued and become due on the contract up to the time of trial, and the further sum of $6,215, to be paid “in the due course of the administration of the estate” as the same becomes' due under the contract. This judgment is brought before us on the judgment roll. After defendant’s opening brief was filed plaintiff moved to dismiss the appeal or affirm the judgment under the provisions of section

[539]

three of Rule V of Rules for the Supreme Court and District Courts of Appeal.

We have studied the opening brief of defendant and if we correctly understand his contentions they may be summarized as follows: that there was $115 due and unpaid to plaintiff on her contract at the time of her mother’s death; that giving judgment for the instalments accruing and becoming due between the date of the death and trial was unauthorized as was ordering the payment in the due course of the administration of the estate of the amount not due at the time of trial. The opening brief concludes as follows: “The respondent here, morally, is entitled to be paid the just amount which is coming to her, which should be the present worth of the amount unpaid on her contract at the time of her mother’s death at the rate of seven per cent per annum, to be paid in the course of administration. We have no objection to the judgment being modified accordingly; otherwise, and if the respondent does not assent thereto, that the case be retried.”