Strauss v. Kroop

RICHARDS, J.

This appeal is from a judgment in favor of the plaintiff and cross-defendant in an action brought to recover judgment upon an alleged creditor’s claim against the estate of Mathew J. Strauss, deceased, after the rejection of said claim by the executor of the last will and testament of said deceased. There are certain facts involving the relations between the plaintiff and the decedent Strauss which are practically undisputed and in the course of which the alleged indebtedness which formed the basis of the plaintiff’s claim against the estate of the decedent is alleged to have arisen. The record discloses that for a number of years prior to the coming of these two parties to California they had been living together as husband and wife in Buffalo, New York, although unmarried, and in fact unmarriageable for the reason that Mathew J. Strauss had during those years a wife living in New York from whom, though actually, he had never been legally separated. Mathew J. Strauss and the plaintiff, who bore throughout her relation with the former the name of Winifred D. Strauss, came to San Diego, California, in about the year 1920, where up to a time shortly before the death of Mathew J. Strauss they maintained their former relation. Each of the parties brought with them some money, which they proceeded to invest in several business enterprises in and about San Diego. The plaintiff was apparently a capable business woman and shortly after their arrival fitted up a beauty shop at a cost of $3,000, which she operated successfully for some time and then sold it for the sum of $5,000, most of which, in the form of cash and of a note and

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mortgage, was turned over to Mathew J. Strauss. The parties then bought an apartment house at Coronado for the sum of $32,000, paid for partly in cash and in the giving of notes and mortgages, signed by both, for the balance, and which apartment house was operated chiefly by the plaintiff, and from which during the first year of its operation a net profit of about $12,000 was derived, which also went into the hands of Mr. Strauss. The apartment house was later sold for $40,000 in cash and mortgages and a portion of the sum derived therefrom was invested in a tract of unimproved land lying about thirty-five miles from San Diego, the title to which was taken in the name of Strauss. About this time Strauss, who was in poor health, went east and while in Buffalo, New York, made a will devising all of his property to casual acquaintances except certain small bequests to his sister and brother, and then returned to California, where, after spending considerable sums of money in search of health, he died on March 6, 1923. The defendant and appellant, who was named in his will as executor, caused said will to be admitted to probate in the state of New York; and then coming to California he took out ancillary letters testamentary in the superior court of the county of Los Angeles; whereupon the plaintiff, under the name of Winfred D. Strauss, presented her claim against the estate of said decedent to said executor for approval. In her claim she set forth three items of alleged indebtedness, to wit, an item of $2,500 stated to be the balance belonging to her but retained by Strauss upon the sale of the beauty shop; second, the sum of $4,000 which she stated to be her share of the net profit derived from the purchase and sale of the apartment properties at Coronado; third, the sum of $6,000 alleged to be due her as a result of the operation by her of said apartment properties during the period of joint ownership thereof by the parties. The aggregate of these three items was the sum of $12,500. The plaintiff in her affidavit to said claim averred that this sum was justly due her and against which there were no offsets. Her claim was rejected by the executor, whereupon she commenced this action for the recovery thereof.