Kirsch v. Derby
Before: McFabland
Synopsis
Appeal from a judgment of the Superior Court of Alameda County.
The action was brought against the defendant, as executor of the estate of Julia Kirsch, deceased, to recover the sum of $3,725, alleged to have been received by the defendant as such executor from the German Savings and Loan Society, “ to and for the use of and belonging to plaintiff,” which the defendant refused to pay to plaintiff upon demand made therefor. The complaint alleges that Julia Kirsch, the wife of plaintiff, died in Alameda County, March 28, 1890, leaving a last will, in which she appointed J. S. Derby as executor; that J. S. Derby, on April 3, 1890, duly filed said will in the office of the county clerk and clerk of the superior court of said county, together with his petition for the probate thereof, and for letters testamentary thereon; that on May 5, 1890, upon proceedings duly had in that behalf in said superior court, said will was duly admitted to probate by said court, and letters testamentary thereon were thereupon ordered to issue by said court to said J. S. Derby upon his qualifying as required by law, and that on May 8, 1890, said J. S. Derby duly qualified as such executor, and letters testamentary were thereupon issued to him by the clerk of said court, and that ever since said eighth day of May he has been and now is the duly appointed, qualified, and acting executor of the said will of said Julia Kirsch, deceased.
McFabland, J.— Defendant made default in the court below, and judgment was rendered for plaintiff. Defendant appeals upon the judgment roll; and the point insisted on for a reversal is, that the complaint is defective, because plaintiff, by said complaint, has not properly pleaded either the probate of the will of Julia Kirsch, deceased, or the appointment of defendant as executor.
We are satisfied that the probate of the will and the executorship of appellant are sufficiently pleaded. (Weller v. Dickinson, 93 Cal. 108; Wise v. Williams, 72 Cal. [605547]; Munro v. Dredging Co., 84 Cal. 515; 18 Am. St. Rep. 248.) But the complaint states sufficient facts for a personal judgment against appellant. If there were any valid objections to the complaint on the ground of ambiguity or uncertainty, such objections could have been taken only by special demurrer. (Demartin v. Albert, 68 Cal. 277; Blanc v. Klumpke, 29 Cal. 156; Blasingame v. Home Ins. Co., 75 Cal. 633; Heeser v. Miller, 77 Cal. 192.)
The judgment is affirmed.
De Haven, J., and Sharpstein, J., concurred.
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