Fox v. Sutton

VAN DYKE, J.

On the death of Stephen Powell Burdick there was on deposit in the First National Bank of Oakland

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some five thousand two hundred and eighty-one dollars and sixty-four cents standing in the name of “S. P. Burdick, Atty.” This money was claimed by the plaintiff, as executor, as belonging to and being part of the estate of said Stephen Powell Bur-dick, and was also claimed by the defendants, A. M. Sutton and Arthur W. Burdick, as alleged trustees, by title adverse to said estate. Under these circumstances the bank refused to pay over the money to either the executor or the trustees, unless the claims of such respective parties wrere first adjudicated. In order to save expense, and in view of the uncertainty of litigation, the claimants agreed by stipulation that the money should be paid over to the executor, subject only to such claim as the said trustees might have to the residue after administration.

Upon this stipulation being entered into, the money was turned over to the executor, and in his final account it is stated that the balance of said money remaining in his hands amounted to sixteen hundred and fifty-seven dollars and ninety cents. Upon the settlement of the. executor’s final account, Alice H. Burdick, surviving widow of the deceased, petitioned the court for distribution of the one-half of said sum to her, on the ground that the whole of said money so received by the executor was community property, and belonged to the estate of her deceased husband. The defendants, Sutton and Arthur W. Burdick, as said trustees, opposed said petition of distribution, and asked that the money be turned over to them, under the terms of their trust deed. The court denied the petition of the defendants Sutton and Arthur W. Burdick, and also denied their motion for an order staying distribution until they could, by action in a court of competent jurisdiction, have their respective claims to said money adjudicated and determined; and thereupon ordered distribution according to the prayer of the petitioner, Alice H. Burdick.

This court dismissed the appeal of said Sutton and Arthur W. Burdick, as trustees, and of said Burdick in his own right, saying : “They are not named in the will and claim no rights under it and have presented no claim against the estate. They are not, and could not have been aggrieved persons. The order refusing to postpone the decree of final distribution was not appealable.”