Tobelman v. Hildebrandt

Searls, C. This is an action to recover upon a promissory note, alleged to have been made by defendant Hildebrandt to August Tittel, the testator of plaintiffs. Judgment of nonsuit was rendered, from which, and from an order denying a new trial, plaintiffs appeal. The complaint alleges that on the twentieth day of August, 1866, August Tittel, in consideration of thirteen thousand dollars, sold and conveyed to defendant Hildebrandt a lot of land on Sutter Street, San Francisco; that defendant paid in cash three thousand dollars, and made his promissory note for the sum of ten thousand dollars, the residue of the purchase price of said lot; that this promissory note was, with other papers of Tittel, placed in an iron safe, to which defendant had access, and that defendant was the confidential agent of Tittel.

August Tittel departed this life February 1, 1868, leaving a last will, under which defendant Hildebrandt was appointed executor.

The will was duly admitted to probate, and administered upon by the defendant as executor, who filed an inventory, and ultimately rendered his final account, which was approved, and a decree made distributing the [315]estate. The note in question was not included in the inventory, and, the complaint charges, was fraudulently destroyed by the defendant, and omitted from the inventory with the fraudulent intent of cheating plaintiffs, who are beneficiaries under the will. The answer denies making the note, and all allegations relating thereto.

At the trial plaintiffs sought to prove, by plaintiff Margaret Tobelman, conversation, between August Tittel, deceased, and his wife, including declarations of the former in his own favor, touching the existence of the promissory note in suit. The court sustained an objection to the testimony. These declarations were hearsay, and clearly incompetent.

The motion for a nonsuit was based upon the following ground:—

“ The complaint, containing a copy of decree settling a final account, is final and conclusive as to the parties, and cannot be disturbed except by a direct proceeding.”

According to the allegations of the complaint, defendant filed his final account, and prayed for a decree of distribution of the estate, which was granted, and the decree, a copy of which is attached to the complaint and made a part thereof, was duly signed, and filed January 4, 1882.