Meilink v. Gianelli

FINCH, P. J.

The facts stated herein are alleged in the complaint. The Joe Gianelli Company is a corporation with a capital stock of 1,000 shares. At all times since the

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organization defendants Joe Gianelli, Jr., has owned twenty-five shares, B. R. Gianelli twenty-five shares and Louiga Gianelli fifty shares, Guisseppe Gianelli, now deceased, owned 900 shares from the organization of the corporation to the time of his death. He left a last will by which he gave his wife Louisa Gianelli, one-half of his property and the other half to his children in equal shares. There is some uncertainty in the complaint as to whether the stock was specifically bequeathed, but in his closing brief appellant admits that it was not. The will was admitted to probate and Louisa Gianelli was appointed executrix thereof. As such executrix she has possession of the 900 shares of the stock. The estate is in course of administration and undistributed. It does not appear that any proceeding has been had to determine who are the heirs of the deceased or who are entitled to distribution of the estate.

The plaintiff, as assignee of many creditors of the corporation, brought this action to recover from the defendants on their liability as alleged stockholders for debts incurred by the corporation since the death of the deceased. The defendants demurred to the complaint. The demurrers of Joe Gianelli, Jr., B. R. Gianelli, Louiga Gianelli and Louisa Gianelli, as executrix, were overruled. The demurrers of the defendants who have no interest in the stock of the corporation except as heirs or beneficiaries under the will were sustained without leave to amend and judgment was thereupon entered in favor of such defendants. The plaintiff has appealed from the judgment.

It clearly appears that the demurrers of the beneficiaries were properly sustained. The court is without jurisdiction to determine in this action who are entitled to distribution of the estate, but the court sitting in probate has exclusive jurisdiction to determine that question.

(Schade

v.

Stewart,

205 Cal. 658 [272 Pac. 567] ; 12 Cal. Jur. 125 and 165; Code Civ. Proc., secs. 1664 and 1666.) It would be a singular rule which would hold the beneficiaries liable as stockholders when subsequently, in the probate proceeding, it may be conclusively determined that they are not entitled to have any of the stock distributed to them. Appellant relies on