Moore v. Lauff

HART, J.

This is an appeal from the judgment, on the judgment-roll alone, by the defendant, LaufÉ.

The action was on a promissory note for five hundred dollars, dated February 15, 1912, which note (the complaint alleges) was made and delivered by the defendants to one S. A. Moore on the day of its date.

The complaint further alleges that Moore died testate on the eighth day of March, 1912, leaving estate, among the assets of which was the note in suit; that Jonah Moore, one of the plaintiffs, was thereafter, on due proceedings, appointed executor of the estate of the deceased, and letters testamentary issued to him, and that he qualified as such executor. The complaint proceeds: “That thereafter such proceedings were had in the matter of the said estate that on the 10th day of April, 1913, there was made and entered in said superior court, in the matter of the estate of S. A. Moore, deceased, a final decree of distribution of the effects of said estate and among which effects was the said- promisspry note, herein declared upon, and which said note was by said decree of distribution, distributed share and share alike to the several beneficiaries named in the said last will and testament of the said S. A. Moore, deceased. That each of the said beneficiaries, so named in said will, and to whom distribution was so made as aforesaid, had at the time of said distribution, attained to his or her majority. That subsequently to said decree of distribution, the several distributees partitioned and divided, equitable among themselves, the effects of the said estate so distributed; and that by said partition and division the said promissory note herein declared upon became the property of these plaintiffs jointly, and

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they are now the owners and holders thereof.” The complaint was unverified.

The defendants interposed a general demurrer to the complaint. The demurrer was overruled, and, answering the complaint, the defendants denied that the note declared upon was on the date mentioned or at any other time delivered to said Moore and denied that the plaintiffs “are now or ever were at any time whatever the owners or holders of said promissory note.”

The appellant contends that the complaint does not state a cause of action, and that his general demurrer should have been sustained. In purported support of this contention, he declares that the complaint is wholly wanting in the statement of a cause of action on the note sued on because it appears therefrom that, after the court made its decree of distribution, whereby the property of the estate was distributed to the several beneficiaries share and share alike, the latter being thus vested with undivided interests in common in the property, the distributees themselves “partitioned and divided the effects of the said estate so distributed,” thus arrogating to themselves and exercising the right to perform an act which is solely within the power of the probate court and which “can be accomplished only by the court”; whereas, so the argument runs, to vest them with ownership of the note, so that they would be legally entitled to maintain an action thereon, it was necessary that said note, with the other assets of the estate, should first have been partitioned and the respective shares of the beneficiaries assigned to them in accordance with section 1675 of the Code of Civil Procedure. That section provides: