Aitken v. Hayward

NOURSE, P. J. This is an appeal from a judgment awarding respondent the sum of $1,557.43. The sole defense of appellant is that the action is barred by the statute of limitations. Respondent and appellant, brother and sister, were the beneficiaries under the will of their mother, Gainor G. Aitken, who died October 15, 1937, a resident of the county of Santa Clara, leaving an estate therein. This appellant was appointed executrix of said estate. The will contained a number of provisions which are material to an understanding of the circumstances of this case. These provisions are:

“Second: I give, bequeath and devise to my said daughter Gainor Wilson Hayward all of my jewelry and personal effects.

“Third: I give, bequeath and devise to my said daughter Gainor Wilson Hayward all claims, sums or indebtedness due to me from my son-in-law, Charles S. Hayward, including all promissory notes and deeds of trust.

. “Fourth: I give, bequeath and devise all the remainder and residue of my estate to my said daughter, Gainor Wilson Hayward, and to my son, Arthur Wallace Aitken, in such proportion that the total value of the property given, bequeathed and devised and to be distributed to each, including the specific bequest contained in paragraph Second, shall be equal.”

[170]Under the equality provision just quoted, it became necessary, in order to determine the amount due the appellant, to ascertain the value of the jewelry and personal effects bequeathed by paragraph Second, and the value of the promissory notes, deeds of trusts and other indebtedness of Charles S. Hayward (the husband of the executrix) bequeathed by paragraph third. The promissory notes had been appraised at $3,600 at the time of the inventory, but their real value was not known.

To facilitate the winding up of the estate appellant, who resided in Los Gatos, caused to be prepared, and forwarded to respondent, then in New York, an agreement dated May 18, 1938, reading in part as follows:

“Whereas, it is not possible to make equal distribution without an agreement between the parties hereto, or a sale of the assets of said estate, owing to the fact that certain promissory notes of Charles S. Hayward are specifically bequeathed to said party of the first part, amounting in appraised value to $3600.00; and

“Whereas, said party of the first part is entitled to fees as such executrix of $779.42 and funds are not available in said estate to pay such fees; of which one-half thereof or $389.71 is properly chargeable to said party of the second part.