Campbell v. Nichols

WARNE, J. pro tem.

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This is an appeal from an order granting respondent’s motion for a change of venue.

Appellant commenced this action in the county of Colusa against respondent in his representative capacity as executor of the last will and testament of Alice Hagar Tubbs, deceased, whose estate is the subject of administration in the city and county of San Francisco.

In his affidavit in support of the motion for change of venue to the city and county of San Francisco, respondent avers that he is not a resident of Colusa County, but omits any reference to his place of residence. However, it appears in the briefs that respondent is a resident of Alameda County. Consequently, respondent would not be entitled to have the cause transferred to the city and county of San Francisco on the ground of residence. (Code Civ. Proc., § 395.) Nor is respondent entitled to a change of venue unless the action herein is one “on claim for the payment of money or for the recovery of personal property” within the purview of section 395.1 of said code, which provides: “When a defendant is sued in his official capacity as executor, administrator, guardian or trustee, on a claim for the payment of money or for the recovery of personal property, the county which has jurisdiction of the estate which he represents shall be the proper county for the trial of the action.”

The complaint herein is entitled “Complaint in Equity to Recover Trust Property Obtained by Fraud and Collusion and to Impress a Constructive Trust,” against plaintiff as executor of the last will and testament of Alice Hagar Tubbs, deceased. The complaint alleges in substance that Alice Hagar Tubbs, deceased, was the daughter of George Hagar; that George Hagar died testate on September 2, 1902; that his will was admitted to probate in Colusa County, and that his daughter Alice, and her husband, Alfred S. Tubbs, were appointed executors pursuant to the terms of said will. It is further alleged that under the terms of George Hagar’s will the residue of his estate was left to his daughter Alice and her husband Alfred, and the survivors of them, in trust for the use of Alice and her children during her lifetime and

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upon Alice’s death to pass to her descendants and if none in equal shares to certain named nieces, nephews, and the widow of a deceased nephew of the testator. Alice Hagar Tubbs died testate and without issue on December 22, 1955. Her will makes no provision for the beneficiaries of the trust named in her father’s will, and appellant claims to have succeeded to the interest of one of them.