Benning v. Nevis

FINCH, P. J.

Plaintiff recovered judgment for the balance due upon her claim allowed against the estate of the above-named decedent. The judgment declared the amount of such claim to be a lien upon the real property of the estate which had been distributed to the heirs; that the heirs held such property “in trust for the purpose of paying the amount” found due the plaintiff, and ordered the sheriff to sell such property to satisfy the judgment.

Plaintiff’s claim was duly allowed for $992 and December 26, 1908, she was paid all but $331.13 thereof. The complaint alleges and the court found that at the time of such payment Joseph M. Nevis, the then administrator of the estate, and A. C. Hinkson, his attorney, told plaintiff that the estate could not be settled until the youngest heir became of age in September, 1916, and that the balance of her claim would be paid at the time of such settlement and would be included in the final account and an order of court procured for the payment thereof; that plaintiff agreed to await payment until the time stated and informed them “that she desired to go to Napa .' . . for her future residence,” and that they told her “that they would write to said plaintiff should anything transpire; that no such notice or letter was ever written”; that the plaintiff relied on said promises and on the promise of the defendant “Emma Nevis to inform plaintiff of the time said estate would be settled, and by reason of said reliance on said promises she did not watch said estate to keep herself informed as to the time the same was settled and distributed, and was misled and prevented from having any knowledge of the purported final account or decree of distribution in said estate, and was prevented from objection to the settlement or distribution of said estate.” There is no allegation or finding, however, that Emma Nevis had made any' such promise.

[194]

'It was further alleged and found that the administrator, Joseph M. Nevis, died June 22, 1909, and that the plaintiff “read an account” of his death; that Joseph Miller was appointed administrator to succeed said Nevis and that A. C. Hinkson acted as attorney for Miller; “that thereafter and before the filing of the final account . . . said A. C. Hinkson died and C. A. Elliott was retained as attorney for Joseph Miller said administrator”; that on or about October 15, 1913, Miller, as such administrator, filed his final account and petition for distribution; that neither the final account nor any other account included plaintiff’s claim and that the balance due thereon has not been paid; that said administrator “carelessly and negligently and in fraud of plaintiff’s rights therein, failed to exhibit the balance due on plaintiff’s claim to the court ... in said final account or in any account filed in said estate and did therein and thereby represent to the court that said account was correct and that all claims in said estate had been paid and . . . proceeded to have settled and distributed said estate, without calling the court’s attention to said claim”; that at all times mentioned the plaintiff was a resident of Napa and had no knowledge of the filing of the final account and petition for distribution and was not present at the hearing thereof, and that she “learned, for the first time, during the month of July, 1916, that said purported final account had been settled and allowed and that said estate had been distributed”; that said estate was distributed to the heirs and that at the time this action was commenced, December 24, 1917, the legal title to the real property of the estate was in the appellants who were heirs of the deceased.