Westergreen v. Beer

THE COURT.

In this action the defendants’ demurrer to the plaintiffs’ second amended complaint was sustained by the court below without leave to amend. Judgment was thereupon entered in favor of the defendants, from which the plaintiffs have appealed.

The grounds of the demurrer were that the complaint did not state a cause of action, and that the plaintiffs did not have legal capacity to sue.

The action was one to declare a resulting trust in certain real property, and to compel a conveyance to plaintiffs of their alleged respective interests therein, and is founded upon the following alleged facts:

Ida Danielson, the mother of the plaintiffs and of the defendant Alice E. C. Beer, died, leaving an estate consisting of certain real property in the county of San Mateo. She

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left a will, which was duly admitted to probate, and, in accordance with the terms of the will, the property w'hich is the subject of the action was distributed share and share alike to her children,—namely, the defendant Alice B. C. Beer, one Lizzie M. Wester green, and Carl A. and John A. Westergreen, the plaintiffs. Both of the plaintiffs were then minors; and shortly after the decree of distribution was made one Crow, the public administrator of San Mateo County, was appointed their guardian by the superior court. On or about December 1, 1902, Crow, as the guardian of the estates of the said minors, filed in the superior court of San Mateo County a petition for an order of sale of the minors’ interests in said property, alleging that a sale was necessary in order to prevent the state and county taxes thereon from becoming delinquent and to prevent the same from being sold for taxes. The petition was granted by the court, and the order of sale made, pursuant to which the interests of the plaintiffs in the property were sold, and at said sale were purchased for the defendant Alice B. C. Beer by her husband, who acted as her agent in the matter and who afterward -conveyed the property to her by deed of gift. The sale was confirmed by the superior court, and Crow, as the guardian of the plaintiffs, executed a deed to the property to the purchaser At the time of the sale the plaintiffs were minors, and the defendant Alice E. C. Beer was an adult.