Scott v. Remley

BARNARD, P. J.

The plaintiff is the widow of Hugh A. Scott, deceased, and the executrix of his estate. They were married in Arkansas in 1915 and removed from that state to California in 1919. On October 25, 1928, Hugh A. Scott executed a will in which he made the plaintiff his sole

[386]

legatee. On November 7, 1928, a written agreement was entered into between these parties in which it was provided that the husband would give to the wife the sum of $4,000, and that all property then owned or later acquired by either, should be the separate property of the respective parties. The $4,000 was paid to the plaintiff and was still on deposit in a bank in her name at the time of the trial. Hugh A. Scott delivered to his sisters, Mary Bailey and Maude Remley, the sum of $2,000 on January 29, 1928, and the further sum of $2,135.27 on March 15, 1930. On March 17, 1930, the said Hugh A. Scott died. His widow brought this action against the two sisters and certain nominal defendants, seeking to recover the two amounts referred to, as being the community property of herself and the deceased, and as having been given away without her consent. The court found that Scott and his wife had entered into the property settlement agreement above referred to, but that the same was subsequently annulled and abrogated; that the two amounts mentioned were, on the dates named, delivered by Scott to the defendant sisters; that at the times of said transfers the respective amounts were the community property of Scott and the plaintiff; and that the said transfers were made without consideration. Judgment in favor of the plaintiff for $4,135.27 was entered as against the defendant sisters, from which judgment this appeal is taken.

Some point is made by the appellants that the respondent could not maintain this action, in that the action was brought by her as executrix of her husband’s estate and not for herself, as the surviving widow. The word “as” does not precede the word “executrix” in the caption of the complaint and the reference to the plaintiff as the executrix of the estate should be taken as descriptive only

(Burling

v.

Thompkins,

77 Cal. 257 [19 Pac. 429]). This is particularly true here since it is fully apparent that the entire case was tried upon the theory that the respondent was suing as the surviving widow, to recover the amounts claimed to have been wrongfully given away.