Opinion
Civ. No. 3832.
April 27, 1922.
APPEAL from a judgment of the Superior Court of Ventura County. Merle J. Rogers, Judge. Affirmed.
The facts are stated in the opinion of the court.
Scott McReynolds for Appellant.
Drapeau, Orr Gardner for Respondent.
This action was brought to recover damages for the alleged conversion of a team of horses, a wagon, and a set of harness, which it was alleged were of the value of five hundred dollars. Judgment was for the defendant. The plaintiff has appealed.
[1] Plaintiff was the widow of her intestate. The husband died November 19, 1919, leaving surviving him, besides plaintiff, several minor children, the eldest of whom was a son about the age of eighteen years. The only property owned by the husband at the time of his death was that mentioned in plaintiff's complaint. The team and wagon had been used by the husband and father to aid in providing support for the family, in which endeavor he was assisted by the son mentioned. After his death the boy assumed the responsibility of earning a livelihood for the family and continued to use the team and wagon for such purpose. About the 1st of February, 1920, he arranged with two men, close relatives of his, to enter into a business partnership to do hauling. It was agreed that they should purchase a motor-truck. It was further arranged that the team and wagon hereinbefore referred to, together with a similar outfit owned by his associates, should be lumped together and delivered to the defendant, who was a dealer in motor-trucks, as an initial payment on the purchase of a truck. The purchase price of the truck was in excess of $3,000 and the horses, wagons, and harness were taken in at a credit value of about $950. The boy and his associates took the truck, used it in conducting the business of hauling merchandise and products, and divided the income received therefrom. That portion of the income received by the boy he delivered to his mother for use in support of the family. More than four months elapsed and, the vendees having failed to make payments required of them, the vendor, exercising the right expressed in the contract, recovered the truck. On August 25, 1921, plaintiff received letters of administration in the matter of the estate of her husband, and on September 19, 1921, commenced this action. As it was asserted by her in her testimony that the deceased possessed no other property at the time of his death than the property described in her complaint, it is evident that the sole purpose of instituting the probate proceedings was to obtain the necessary authority to commence this suit in the representative capacity indicated. The position taken by the administratrix is that there was no authority in the son to transfer title to the property in the absence of some order in probate authorizing him so to do. Respondent's answer to this contention is that, as the value of the property was less than fifteen hundred dollars, appellant, as the widow of the deceased, had the right, under the provisions of section 1469 of the Code of Civil Procedure, to have the property assigned absolutely to her, and that any act committed by her showing an acquiescence in or an adoption of the transaction as made by the son would effectually estop her from denying effect to the contract. That contention seems to be fully sustained by the pleadings, evidence, and the findings made by the court. The widow was entitled to have the property set apart to her as a matter of right and wholly free from the claims of creditors. ( Estate of Palomares, 63 Cal. 402; Estate of Atwood, 127 Cal. 427 [ 59 P. 770].) While she testified that she did not consent to the plan of her son to exchange the team and wagon as part payment for the truck, she admittedly was fully informed of the transaction, knew that the son was using the truck in earning money for the support of the family, and received and used those earnings. She at no time prior to the bringing of this suit (which was commenced nearly two years after the truck was purchased) notified the defendant that she disclaimed any agency in her son to act in the transaction.
The judgment is affirmed.
Conrey, P. J., and Shaw, J., concurred.