Triplett v. Williams

DEVINE, P. J.

Appellants are plaintiffs in an action against the executrix of the will of George W. Hoffman, deceased, and against legatees under his will. The complaint was dismissed after sustaining of a demurrer based on the

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statute of limitations. Appellants are remaindermen of a trust established in the will of Clara Trubody Hoffman, wife of George W. Hoffman. She died on November 1, 1958. Her husband died on February 6,1964.

The testamentary trust provides that the rents, issues and profits of the remainder of the estate (following bequests to several persons, including plaintiffs) shall be paid by the trustee, Bank of America National Trust & Savings Association, to testatrix' husband, George W. Hoffman, during his lifetime, and at his death the remainder shall go to testatrix’ cousins, plaintiffs herein.

The complaint was filed on September 28, 1964. It alleges that on February 19, 1958, George W. Hoffman unduly influenced his wife to transfer the' sum of $22,068.91, which was her separate property, into a joint bank account with him, and that on September 23, 1958, .he unlawfully converted the joint account to his own use. The complaint alleges that Clara Hoffman was of unsound mind on February 19, 1958. The suit is for the purpose, as it is put in the prayer, of establishing a constructive trust. There is no allegation in the complaint of the time when the transfers came within the knowledge of the plaintiffs.

Section 338, subdivision 4 of the Code of Civil Procedure was pleaded in the demurrer and, upon the ground of this statute, the demurrer was sustained. The plea of the statute of limitations is good. The cause, of action was created, according to the facts set forth.in the pleadings, not later than September 23, 1958. But during whatever time Mrs. Hoffman was of unsound mind, the statute was tolled. Upon her death on November 1, 1958, however, the tolling of the statute ended. This date is so far removed from the commencement of the action as to preclude the prosecution of the cause by reason of the pleading of the statute of limitations.

The personal representative of a decedent not only has the power, but it is his duty,- to sue; for recovery of personal property alleged to have been procured from the decedent by fraud or undue influence.