Swart v. Swart

WOOD (W. J.), J. By this action Blanche Alta Swart, as administratrix of the estate of Grace Swart, deceased, sought to set aside the transfer made by Grace Swart during her lifetime to defendant Grover C. Swart of 201 shares of the capital stock of the Charles Ellsworth Corporation and to [50]require defendant to account for a Buick automobile transferred to him by Mrs. Swart. Defendant has appealed from a judgment by which plaintiff (in her individual capacity), defendant and Jack Swart were each held to be the owners of an undivided one-third interest in the stock and by which plaintiff was awarded the sum of $450, representing the value of the automobile, which had been sold by defendant prior to the commencement of this action.

The action was tried concurrently with the case of Grover Swart v. Blanche Swart, in which an appeal has been this day decided, ante, p. 44 [120 Pac. (2d) 940], and the other proceedings therein mentioned, and was decided upon the same evidence. Upon the authority of that decision we hold that any question concerning the correctness of the judgment herein, insofar as it purports to determine the issues concerning ownership and right to possession of the shares of stock in question, has become moot. We are called upon, however, to determine whether the trial court properly awarded plaintiff the sum of $450 as the value of the automobile.

At the time that the certificates for the shares of stock were transferred to defendant by Mrs. Swart he induced her to assign to him the ownership certificate for a Buick automobile. This transaction occurred about two weeks before her death and while Mrs. Swart was constantly under the influence of opiates and sedatives.

Defendant contends that the present action is barred by the statute of limitations because it was not commenced until more than four years after the alleged transfer of title to the automobile. The only persons who could have maintained an action to set aside the transfer of title to the automobile were defendant and his two children, they being the sole heirs of decedent. Obviously defendant would not, in fact could not, have maintained an action against himself for that purpose. The two children were the only persons who could have commenced this action and at the time the cause of action accrued both were minors. Plaintiff, who is the elder of the two children, attained her majority approximately eleven months before the filing of the present action and was appointed administratrix of her mother’s estate only seven mqnths prior thereto. The time during which the disability of minority exists is not a part of the time limited for the commencement of an action. (Code Civ. Proe., see. 352.) No administrative proceedings had been commenced by Grover