Noble v. Noble

[506]

STURTEVANT, J.

Plaintiff commenced an action against the defendants as executors of the last will and testament of Patrick Noble, deceased, to recover a judgment based on a rejected claim, or rather a claim not allowed by the defendants. The defendants answered, a trial was had in the trial court, the court sitting without a jury, and judgment went for the plaintiff. The defendants have appealed and have brought up the judgment-roll and a bill of exceptions.

In her complaint the plaintiff alleged that the defendants are executors; that on the twenty-first day of July, 1908, the plaintiff deeded two houses and a lot at Santa Monica to her brother Patrick Noble; that the property was then of the value of $7,500; that the plaintiff was the only surviving sister of Patrick and that she deeded the property to him on the agreement that he would manage the same and would invest and reinvest the proceeds of the property for her benefit and would deliver to her the proceeds of the property at such time as might be agreeable to Patrick or to herself; that the agreement was oral and was made by reason of the trust and confidence reposed by the plaintiff in her brother and by reason of the brotherly interest and affection of the said Patrick to the plaintiff; that Patrick continued to hold the trusteeship of the said property up to the time of his death in October, 1920, without making to plaintiff any accounting or paying to plaintiff any interest upon the amount of the value of the property or any of the rents, issues or profits thereof. That on the twenty-ninth day of June, 1921, plaintiff presented a claim for $6,225.25, the amount of interest at seven per cent from the twenty-first day of July, 1908, to the date of filing the claim upon the principal sum of $7,500; that the claim was not allowed and that there is now due $6,225.25.

The trial court made a finding to the effect that Patrick did not pay to the plaintiff any of the rents, or proceeds of the property, or any interest upon the value of the property. The appellants attack the finding as not being supported by the evidence. We think that the attack cannot be sustained. The record discloses that Patrick made many payments to his sister during the period mentioned, but the real controversy between the parties is as to what those