Nielsen v. Emerson

THE COURT,

An actionto quiet plaintiff’s alleged title to certain real property described in the complaint as lot 24 in block 131 according to that certain map entitleod Resubdivision of Block 131, as per Keller Berger’s Map of Oakland, Alameda County, California, filed February 27, 1890, in the office of the county recorder of Alameda county.

The action was against M. L. Emerson as trustee under the last will and testament of B. Agnes Nielsen, deceased. Defendant trustee, after denying plaintiff’s ownership, averred that plaintiff was estopped from maintaining the action by reason of a previous judgment in action number 90545 entitled “Mads Nielsen, plaintiff,

versus

M. L. Emerson and M. L. Emerson as trustee under the will of B. Agnes Nielsen, deceased, defendants’’, filed in the Superior Court of Alameda County, and which judgment was entered on October 8, 1928.

The court found in accordance with the allegations of the answer and rendered judgment against plaintiff, who has appealed therefrom.

The facts are as follows: On April 30, 1925, said B. Agnes Nielsen, who was plaintiff’s wife, died, leaving a will, by which she bequeathed her estate, including the real property above described, to defendant M. L. Emerson, as trustee upon certain trusts cet forth in the will, of which Emerson was also named as executor. Administration was had, and on July 20, 1926, the residue of the estate, including said real property with certain money in bank and other personal property, was distributed to defendant upon the trust so created. Both the will and the decree of distribution provided that the income from the trust estate be paid to plaintiff during his lifetime, and that upon his death the trust should end and the property vest in equal shares in defendant Emerson and a brother of the deceased. The

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will also provided that if in the opinion of the trustee or the court it should be deemed advisable that plaintiff should have for his support and maintenance more than his personal earnings and the income from the trust estate, then in the discretion of either the trustee or the court such additional sum as might be necessary should be paid to him monthly for his support.