Wheeler v. Bolton

McKee, J. -On the trial of this case the court excluded the testimony by which the plaintiff offered to maintain, on her part, the issues made by the pleadings in the case, and granted a nonsuit; but afterwards set aside the nonsuit, and ordered a new trial. From the order granting a new trial the defendant appeals. Presumptively, the order was correct. But the appellant contends that it is erroneous, because the evidence offered by the plaintiff to maintain her cause of action was clearly inadmissl[85]Me for that purpose. The cause of action was this: On the seventh of September, 1850, William L. Carman died in the city of San Francisco, seized and in possession of a tract of land, described in the complaint by metes and bounds, containing 72 acres of land, situated in the city and county of San Francisco, near the Mission Dolores. At the time of his death Car-man left a last will and testament, which was admitted to probate, and the defendant and one Theodore Adams were appointed executors of the will. As such they qualified and administered the estate, and, upon a settlement of their final accounts, the probate court, on the seventeenth of April, 1876, “ adjudged and decreed that the real estate, as described in the inventory of said estate, and the account therein filed on the tenth day of June, 1852, be and the same is hereby distributed, to wit: Seventy-two (72) acres of land, situated at the Mission Dolores, to which the deceased held a pre-emption right, be, and the same is hereby, distributed to Margaret C. Wheeler, sole legatee, under and by virtue of the will of William L. Carman, deceased.”

The descriptive clause of the decree contains the description of the land as it was inventoried and subsequently accounted for in one of the annual accounts of the executors. By the decree, the plaintiff claimed to be entitled, as sole distributee, to the tract of land as described in the complaint. But she charged that it had been lost to the estate and to her by the inexcusable negligence of the defendant, as one of the executors of the estate ; and therefore she sued to recover its value. In answer to her complaint, the defendant denied seizin or possession by the testators of the tract of land described in the complaint, knowledge or possession of it by the executors, or that they were chargeable therefor, and specifically denied all charges of negligence, etc. One of the questions, therefore, was whether the land described in the complaint was a part of the estate of the testator, which came to the knowledge and possession of his executors. Upon that question the plaintiff offered in evidence the decree of distribution, accompanying the order with the statement that she would follow it up by the oral testimony of witnesses, to the effect that the 72 acres of land, as described in the decree, were known as a tract of land bounded as set forth