Rowland v. Madden

McFarland, J. After full argument on rehearing,, we see no reason to depart from the conclusion heretofore reached in this case. Appellant complains that the judgment heretofore rendered by this court rests too-largely upon technical grounds. We are disposed to-look through technical difficulties, and mere questions of pleading and practice, to the real legal merits of a case,, when we can do so without violating well-settled principles; but the rule that the proofs must correspond to the averments is too grave to be totally disregarded. Appellant’s real cause of action, if he has any, lies in the [18]alleged fact that his wife, now deceased, about thirteen years before her death, got possession of some sixteen thousand dollars in money, of community property, and secretly used it as her own separate property,—appellant believing all the time that she had paid it out on certain debts which she represented the community to be owing, but which had no existence. Now, this action is brought against the defendants as executors of the last will of the deceased wife. The complaint charges an indebtedness of the estate, and that a creditor’s claim for the same, duly verified, was presented to defendants in accordance with sections 1493 and 1494 of the Code of Civil Procedure, and was by them rejected; and its prayer is for a money judgment to be paid out of the estate in due course of administration. . Clearly in such a case there must be proof of the presentation of the claim to the executors.

But if we were permitted to look further into the case, we could see nothing to warrant a reversal of the judgment. If we could disregard the pleadings and treat the action as one in the nature of an action of replevin to recover the money, not as a debt, but as specific community property belonging to the husband,—'in which case defendants should not have been sued as executors,—then appellant would fail, because the money, or any specific property or fund to which it can be traced and identified, is not shown to have come into the possession of respondents. If the money may be considered as property subject to a trust, and it cannot be identified either in its original or in any substituted form, then, although appellant might rely upon the personal liability of the trustee, he has no special claim upon her general estate superior to that of other creditors. In that view his position toward the estate is simply that of other contract creditors, and his claim should have been presented to the executors. (Lathrop v. Bampton, 31 Cal. 23.)

These views of the case make it unnecessary to notice