Rogers v. Bank of America National Trust & Savings Ass'n

California Court of Appeal Mar 26, 1956 No. Civ. 16687Published

Before: Nourse

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Holding. The court held that an heir lacks the legal capacity to maintain an action for the recovery of personal property belonging to a decedent's estate, as such claims must be brought by an executor or administrator. Furthermore, the court held that claims regarding real property were barred by the statute of limitations.

Issues

Whether an heir has the legal capacity to sue for the recovery of personal property belonging to a decedent's estate.
Whether the statute of limitations bars claims based on fraudulent real estate transactions occurring decades prior to the action.
Whether a prior verified complaint's allegations may be considered when a subsequent amended complaint omits them to avoid fatal defects.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It has long been settled that such action must be brought by the executor or administrator of the estate.”

“The fact that the estate has not been probated or that there is no representative is not such a circumstance.”

“if a prior verified complaint contains allegations which make it fatally defective, the defect cannot be cured by omitting said allegations in the later complaint without proper explanation”

NOURSE, P. J.

Plaintiff appeals from a judgment entered on the sustaining without leave to amend of a demurrer to his fourth amended complaint against the administrator of the estate of Elizabeth A. (Green) Rodgers, hereinafter called the decedent. To all four prior drafts demurrers had been sustained with leave to amend. All demurrers contained among other grounds that the complaint did not state facts sufficient to constitute a cause of action and that plaintiff had no legal capacity to maintain the action. We have concluded that the fourth amended complaint also suffers from said and other defects.

The basis of the complaint in all its forms is that decedent allegedly stole or took by fraud from plaintiff’s grandmother Elizabeth McConnell real and personal property, and that she commingled the moneys and securities so obtained with her

[230]

own. Decedent was a daughter of the second marriage of Elizabeth McConnell, whereas plaintiff is the only issue of Maria T. Rogers, a daughter of the first marriage of Elizabeth McConnell. Elizabeth McConnell died in San Francisco on March 27, 1906. Several more descendants of hers are mentioned in the complaint—the children of decedent as defendants—but none of them seem to have been served and they are not parties to the action. It is further alleged that in September 1947 and April 1948 decedent -informed plaintiff that she held property which belonged to plaintiff as his share in the estate of Elizabeth McConnell from whom she had wrongfully taken it, which matters she had fraudulently concealed from the heirs and next of kin of Elizabeth McConnell, and that decedent had then promised fully to account therefor to plaintiff, but that she left California on October 17, 1948, taking her possessions with her, and that she died in Georgia on March 8,1950, without rendering the accounting promised.

Plaintiff timely filed his claim in the estate of decedent, but it was rejected. Plaintiff’s prayer is in substance that he recover his share of the estate of Elizabeth McConnell which decedent held for plaintiff’s benefit, that the administrator of the estate of decedent account for the property so held and that a trust be imposed on the assets of the estate of decedent for the value of plaintiff’s said interest.

Rogers v. Bank of America National Trust & Savings Ass'n

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NOURSE, P. J.

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