Kagee v. Bencich

California Court of Appeal Jul 7, 1938 No. Civ. 6008Published

Before: Pullen

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Holding. The court held that an action for conversion against an individual executor does not require the filing of a claim against the estate, and that the statute of limitations did not bar the action because the conversion occurred upon the defendant's repudiation of the pledgee relationship in 1935.

Issues

Whether a claim against an estate is a prerequisite to maintaining an action for conversion against an executor in their individual capacity.
Whether the evidence was sufficient to support the finding that the defendant came into possession of the property.
Whether the action was barred by the statute of limitations.

Disposition. affirmed

Quotations verified verbatim against the opinion

“This is an action against Mrs. Walsh for conversion in her individual capacity; therefore the code section which requires the filing of a claim against the estate does riot there apply.”

“The conversion constitutes a tort, and the only cases in which a claim is required to be filed are those arising upon contract.”

“The evidence discloses that it was not until 1935 that Mrs. Walsh repudiated her relationship as pledgee.”

PULLEN, P. J.

From a judgment in favor of plaintiff, defendant appeals. As grounds for such appeal defendant alleges that the court erred in holding that plaintiff was not required by law to file a claim against the estate as a prerequisite to maintain the action; secondly, that the findings and judgment are contrary to the evidence, and that the evidence is insufficient to sustain the findings in that there is no testimony that the diamonds hereinafter mentioned ever came into the possession of defendant, and thirdly, that the action is barred by the statute of limitations.

From the record it appears that during the year 1931 respondent was the owner of five diamond rings, which she valued at the sum of $1500. These rings at that time were pledged at Zemansky’s Loan Office in Sacramento, as security for the repayment of the loan of $150.

During the summer of 1931, Ed. R. F. Walsh, now deceased, accompanied by his wife and Mrs. Kagee, the respondent, went to Zemansky’s Loan Office, where Walsh redeemed the rings, he advancing the $150 necessary so to do. He- thereupon took possession of all of the rings and agreed to hold them for an indefinite length of time, subject to redemption by respondent. Walsh, accompanied by respondent, thereupon went to the California National Bank, where he placed them in a safe deposit box which he had in that institution. Mrs. Lottie Cecelia Walsh, his wife, accompanied them to the loan office and to the California National Bank and was present during the transaction.

Walsh became seriously ill about the middle of October, 1931, and was thereafter confined to his home until his death in October, 1932. Prior to his illness respondent, about the 5th of October, 1931, paid $45 to Walsh on account, and on November 5, 1931, while decedent was sick in bed she paid an additional $25 thereon. This later payment was made in cash to Lottie Cecelia Walsh at the home of appellant and decedent. At that time Mrs. Walsh, in her own handwriting, delivered a receipt to respondent, reading as follows:

[471]

“Nov. 5-1931

“Received of Marcia $25.00, part payment on loan on diamond rings.

“Mrs. Ed. Walsh."

Kagee v. Bencich

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PULLEN, P. J.

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