Anglo California National Bank v. Kidd

WARD, J. This action in interpleader was brought by plaintiff bank. The conflicting claimants are respondent Louis L. Levy and appellant William E. Kidd. A motion for diminution of the record, interposed by appellant prior to submission of the cause, was granted. In the determination [653]of the appeal all additional records, affidavits, etc., have been considered.

The complaint of the bank, trustee under the will of Edith Lindow, alleged that the superior court in the matter of her estate “made and entered its amended decree of final distribution, whereby it ordered distributed to Anglo-California Trust Company, this plaintiff’s predecessor in interest, certain property belonging to the Estate of said decedent, Edith Lindow, in trust for certain purposes therein set forth, namely, that said trustees should pay the income from the principal of said fund to Carl W. Lindow, a son of said decedent, annually until he attains the age of thirty years, and upon his reaching the age of thirty years, the said trustee should pay and deliver the principal sum to him. [It is further alleged] That the said Carl W. Lindow is now living and is of the age of thirty years. That the said fund and the said property, after accountings duly made to this court, consists of the items” enumerated in an exhibit attached to the complaint.

As the result of a judgment obtained in 1933 against Carl Lindow in the amount of $464.50, seven writs of execution were issued. There was partial satisfaction thereof on two occasions in the amounts of $129.52 and $3.95. Following the sixth execution, the sheriff purported to sell on August 16, 1935, all the right, title and interest of the son in the estate of his mother, worth several thousand dollars, for the sum of $5.00. The purchasers (judgment creditors), who had in 1933 assigned their judgment to appellant Kidd, also assigned to him all their right, title and interest in the certificate of sale. The sale occurred over two years before the time Carl Lindow reached the age of thirty years.

Respondent Levy is the assignee of Carl Lindow and of other assignees of the son, covering all his right, title and interest in and to the trust fund and property. The court found that all except two of such assignments were made for a valuable consideration. As to the two, it made no finding in that regard.

The first five executions may be disregarded. At the time of the sixth execution on July 24, 1935, more than one year had elapsed since the issuance of each of them. The property was not in the hands of an executor or administrator; it had been distributed to the trustee in 1928. The vitality of