Tynan v. Kerns

CHIPMAN, C. A demurrer to the complaint was sustained on the ground that it did not state facts sufficient to constitute a cause of action, and, plaintiff declining to amend, judgment passed for defendants, from which plaintiff appeals. It appears from the complaint that the defendants’ intestate died in October, 1892, and on November 28th his surviving widow, one of defendants, was appointed administratrix of his estate, and on December 13th she returned her inventory and appraisement. The court made an order directing that publication of notice to creditors be made in the Santa Cruz Daily Sentinel, and it was so published from. December 14 to January 17, 1893, and the next day the court made its decree that publication of notice had been duly made, limiting the time within which to present claims-to four months; that the inventory showed real estate of the value of four thousand three hundred and sixty dollars, and personal property valued at three hundred and sixty dollars; that the real estate was community property, and that decedent had duly declared and recorded a homestead upon the same in 1884, for the benefit of his wife (one of defendants) and his family; that said administratrix filed her petition to have the said real estate set apart- to her as a homestead, of the hearing of which notice was posted by the clerk of the court; and the court on December 27, 1892, granted the petition and set apart said real estate to her “in fee simple absolute”; that on July 7, 1893, the court made its decree distributing all the property of the estate, and on July 10, 1893, made its order discharging the administratrix from her trust; that on August 5, 1893, plaintiff presented her claim against said estate to said administratrix, who refused payment, whereupon, on August 21, 1893, plaintiff filed her complaint in this action. The action is brought to annul all the proceedings in the matter of said probate subsequent to the re[449]turn of the inventory and to compel the administratrix to allow plaintiff’s claim. The relief is sought on the ground of the alleged fraud of the administratrix in conducting the administration of said estate, by which the court was misled to make the several orders and decrees already mentioned, to wit, the order directing notice to creditors, the decree establishing notice to creditors, and the order setting apart said real estate as a homestead.

The specific fraudulent acts alleged may be briefly summarized as follows: That the administratrix falsely stated in her petition for letters the value of the real and personal estate to be five thousand dollars, when she knew the value of the real estate was “twenty-five thousand dollars and of the personal property two thousand dollars”; that she procured the appointment of appraisers who would and did, in aid of her design to defraud plaintiff, return the value of the real and personal property at five thousand dollars, the purpose being to mislead the court into making the notice to creditors four months instead of ten months; that she selected a newspaper in Santa Cruz in which to publish the notices required by law to be published for the purpose of concealing the fact of publication from plaintiff, who it is alleged did not take said paper, and that said paper was not one of general circulation in "Watsonville, near which town plaintiff resided; that the court was misled in setting apart all the said real estate as a homestead through the said fraudulent undervaluation; that plaintiff had no actual or constructive notice of any of the said orders complained of, and had no actual or constructive notice that creditors were required to present their claims within four months, but she supposed that claims would not be barred for ten months after notice given to creditors, inasmuch as the said real estate was of the value of twenty-five thousand dollars, and was so known to be by said executrix and by the public at large in the neighborhood; that the first actual notice plaintiff had of said orders was when she presented her claim and learned that the estate had been finally settled.