Bowden v. Pierce

The Court. For the reasons given in the opinion rendered in Department One, order affirmed.

[460]Thornton, J., expressed no opinion. The following is the opinion of Department One above referred to, rendered on the 17th of June, 1887:—

Paterson, J. — Plaintiff, who is an heir and devisee of A. H. Houston, deceased, commenced this action February 9, 1881, to have certain contracts of sale from the executrix to defendant Pierce declared fraudulent and void; to have defendant adjudged to be a trustee for the devisees as to all moneys realized under the sea-wall contracts so purchased by him, and to require him to account therefor.

The answer denies all charges of fraud and undue influence upon the executrix, and as a separate defense pleads the statute of limitations.

It appears from the findings that Houston, on July 23, 1867, entered into two contracts with the board of state harbor commissioners for the construction of certain sections of the sea-wall; that pn December 8, 1868, said A. H. Houston, being in failing health, departed for the Sandwich Islands, the work being still incomplete; that said Houston, prior to his departure, and on the eighth day of December, 1868, executed a general power of attorney to said Pierce, which was duly accepted and recorded by Pierce, and Pierce, acting under this power of attorney, thereafter, collected all moneys paid under said contracts,—he first heard of the death of Houston on March 28, 1869; that Pierce, on April 2, 1869, received $29,952.22 from said board on contract for section 3, and immediately applied the same to the use of said estate; that on April 3, 1869, an attorney, at the request of Pierce and said Caroline (named in the will as executor and executrix) filed Plouston’s will for probate, and Pierce’s and Mrs. Houston’s joint petition for letters testamentary to Pierce and Mrs. Houston; and that on April 14,1869, the will was admitted to pro[461]bate in tlxe Probate Court of the city and county of San Francisco, and letters testamentary ordered to be issued to Mrs. Houston and Pierce; that Pierce did not qualify, and did not file at any time any written renunciation of his executorship, and that Mrs. Houston alone qualified as executrix (April 20, 1869); that an inventory of the property of the estate was prepared, verified on April 23, 1869, by Mrs. Houston, and filed on May 5, 1869; that on April 7, 1869, said board advertised for bids for the construction of section 4 of the sea-wall; that negotiations thereupon commenced for the sale of said contracts and of the plant to Pierce, which resulted in an agreement of sale before April 21, 1869, and that the agreement was “ subject to the condition that it was to be executed only in case Pierce obtained from the state board of harbor commissioners the contract for section 4.