Lorber v. Tooley

STURTEVANT, J. The plaintiffs in three separate actions sued to recover the balances due on three promissory notes. The actions were consolidated. A separate set of findings was made in each action and a separate judgment was entered. From each judgment the defendant has appealed.

The controversy arose out of the following facts:

Carrie M. Botts, deceased, the maker of the three promissory notes upon which these actions were instituted, was the wife of James M. Botts, who died in March, 1934. By his will James M. Botts appointed R. Stanley Dollar his executor, left nothing to his wife Carrie M. Botts, except her community interest, and left legacies of 20% of the capital stock of the American Marine Paint Company to John Parker; $20,000 to R. Stanley Dollar, and bequeathed the balance of his estate to his brothers and sisters.

R. Stanley Dollar, as the executor of the last will and testament of James M. Botts, appointed Keith R. Ferguson as his attorney, and informed him that he would not sign any petitions or approve any claims unless such petitions and claims were approved in writing by the widow, Carrie M. Botts. Mrs. Botts desired to obtain full control of the American Marine Paint Company, and for that reason she [49]wanted to pay all claims against the estate and obtain assignments for them. She wanted the title to all the stock, and to have no claims against it. Having made arrangements for the assignment of all three claims, on July 2, 1934, Mrs. Botts executed the three notes payable to R. Stanley Dollar and J. Harold Dollar, each in the sum of $12,000, and a note to H. M. Lorber, in the sum of $5200. Bach of the notes being payable within one year, Mrs. Botts commenced the payment of the notes by monthly installments on August 2, 1934, of $205 each on the R. Stanley and J. Harold Dollar notes, and $90 on the H. M. Lorber note, and made such payments each month thereafter to and including January 2, 1938, a period of three and one-half years, her death occurring on January 20, 1938.

In August, 1934, the first inventory was filed, listing the assets of the estate of James M. Botts, which were appraised at $1969.92.

The matter of drawing up the claims of the plaintiffs against the James M. Botts estate was placed in the hands of Keith R. Ferguson, who was delayed in preparing the claims by reason of certain legal work so that the claims were not prepared until October 16, 1934. The claims were presented to Theodore M. Levy, associated with Ira S. Lillick of the San Francisco bar, who were acting as the attorneys for Mrs. Botts. They obtained the approval of Mrs. Botts to the claims, and then returned them to Mr. Ferguson, who presented them to Mr. Dollar for his approval. The endorsement of approval of Mrs. Botts appears on the bottom of each of the three claims.