Herrick v. Everhart

California Court of Appeal Mar 29, 1966 No. Civ. No. 28375Published

Before: Files

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Holding. The court held that the plaintiffs' complaint sufficiently alleged an express trust and that the action was not barred by laches or the statute of limitations, as the breach occurred upon the trustee's death rather than at the time of property transfer.

Issues

Whether an order sustaining a demurrer without leave to amend is an appealable order.
Whether the plaintiffs' action to enforce an oral trust is barred by laches or the statute of limitations.
Whether the complaint sufficiently states a cause of action for the enforcement of an express trust.

Disposition. reversed

Quotations verified verbatim against the opinion

“The orders sustaining the demurrer and denying leave to amend were not appealable.”

“The breach occurred when she died, October 30, 1961, without having made arrangements for the transfer of the remainder to the plaintiffs.”

“The judgment is reversed and the superior court is directed to overrule the demurrer.”

FILES, P. J. In this action to establish a trust based upon an alleged oral agreement between spouses now deceased, the trial court sustained demurrers to three successive complaints, the third without leave to amend. Following this latter 'order, which was made on December 10, 1963, the trial judge signed and the clerk entered on December 20 a document captioned “Judgment” but which is in form merely another order sustaining the demurrer without leave to amend. The document does not purport to dismiss the action or award costs.

On January 2, 1964, plaintiffs filed a notice of motion for leave to file a third amended complaint. This motion was treated by the court as an application for reconsideration of the December 10, 1963, ruling, and was denied on January 14, 1964.

On January 28 plaintiffs filed a notice of appeal from the order of December 10 and the denial of their motion for leave to amend on January 14.

On March 30,1964, the court signed and filed a judgment in favor of defendants, declaring that plaintiffs take nothing.

[197]On April 2, 1964, plaintiffs filed a notice of appeal from the judgment of March 30.

The orders sustaining the demurrer and denying leave to amend were not appealable. The attempted appeal therefrom by the notice filed January 28 must be dismissed. (Beazell v. Schrader, 205 Cal.App.2d 673 [23 Cal.Rptr. 189].) The judgment of March 30 was effective to dispose of the action in the trial court, and thus the notice of appeal filed April 2 establishes jurisdiction here to review the merits of the antecedent orders. (Beazell v. Schrader, 59 Cal.2d 577 [30 Cal.Rptr. 534, 381 P.2d 390].)

The essential facts alleged in the second amended complaint will be summarized. Plaintiffs are the heirs of Winfred P. Shepherd. Defendants are the heirs, executor and beneficiaries under the will of Clara W. Shepherd. On June 14, 1941, Winfred, who was then 62 years of age, and Clara, then 50, were married. Prior to this union Winfred had acquired valuable property, real and personal. “ [A]s part of the marriage agreement” Clara and Winfred agreed that all of his separate property and all community property which might be acquired should be held in the form of joint tenancy; that if Clara survived Winfred she would be provided for by means of a life interest in the property, and she would hold the remainder in trust for the heirs of Winfred, so that upon her death, all of the remainder would become the property of Winfred’s heirs.

Herrick v. Everhart

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