Hurlbert v. Title Insurance & Trust Co.

MELVIN, J.

Plaintiff appeals from a judgment entered after demurrer to his complaint had been sustained without leave to amend.

In the complaint the following facts were, in substance, alleged: During the lifetime of Lillian D. Hoag, now deceased, she and her brother, the plaintiff, held certain property in joint tenancy over which she, with plaintiff’s consent, assumed entire control. Without his knowledge she had used some of the joint funds to purchase 21 shares of stock in El Sobrante Land Company (a corporation), of the

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par value of two thousand one hundred dollars.

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May 14, 1914, she died testate, and on June 13, 1914, her will naming defendant as executor was duly admitted to probate and letters testamentary were issued. Thereafter, defendant filed an.inventory of her estate in which the 21 shares of stock were listed. On October 22, 1914, an assessment of $3 a share was levied on the said stock, and on December 15, 1914, said stock was sold for failure to pay the said assessment. On November 15, 1914, plaintiff began an action for a decree that all the property listed in the inventory was in fact the identical property accumulated by him and his sister in joint tenancy. Thereafter, he prevailed in said suit, establishing his sole ownership in all the property, including the stock, by right of survivorship. On June 17, 1916, defendant was discharged from the office of executor, and not until the following day did plaintiff acquire possession of his property and the papers which had been in the executor’s possession. Plaintiff pleaded that he had no knowledge of the assessment or sale of the stock, and no opportunity to redeem the shares, and that defendant resisted all his efforts to obtain control of the property until judgment was rendered in his favor. After the certificate came into his possession he discovered upon due and prompt investigation that it was worthless. At the time of sale (as alleged in the pleading) when the shares could have been redeemed they were worth $150 a share. Negligence of the defendant was alleged upon the ground that it failed to pay the assessment, having ample means in the -estate with which to discharge it; that it neglected to protect the stock from sale; and that it failed to redeem said stock while resisting plaintiff’s lawful demand for the property. The amount prayed for as damages is $3,150, the alleged value of the shares lost to him.