Opinion
L. A. No. 4213. Department One.
April 17, 1918.
APPEAL from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial. Louis W. Myers, Judge.
The facts are stated in the opinion of the court.
W.A. Alderson, for Appellant.
Dennison Towner, for Respondent.
The defendant appeals from a judgment and from an order denying her motion for a new trial. We think the appellant's claim that the complaint does not state sufficient facts to constitute a cause of action or to support the judgment of the court below is well taken. The action was against the defendant as the executrix of the estate of Henry A. Reed, deceased. It set forth that in the lifetime of decedent the plaintiff had given said decedent the sum of $2,250 as the purchase price of certain stock in a corporation known as the Southwestern Sugar Company, which said decedent agreed to transfer to the plaintiff for said sum of money. It further alleges that the corporation was insolvent and that the stock was worthless; that the decedent represented to her that it was of great value and worth the price which she agreed to pay therefor, and by that means obtained from her the said sum of money and the agreement to purchase the stock, and that the decedent further represented that he would consider the money as a trust fund and would guarantee plaintiff against any loss, and that if the stock should prove to be of no value, he would repay the money so paid by plaintiff. It is alleged that the representations made by the decedent were false and untrue and that the stock was in fact of no value. There is no allegation that the plaintiff ever offered to rescind the contract and return the stock, or that any claim for the money sued for against the decedent's estate was ever made or presented by the plaintiff, or that the defendant, as executrix, ever received the money paid by the plaintiff to the decedent. There is nothing in the complaint sufficient to state a cause of action to charge the executrix as trustee of any specific property belonging to the plaintiff. The judgment itself purports to be a personal judgment in favor of the plaintiff against the defendant Ethel M. Reed, executrix of the estate of Henry A. Reed, deceased, for $2,123.83 and costs. It is not made payable in due course of administration nor charged against the estate of decedent.
It is well settled that a suit against an executrix to enforce a money demand upon contract cannot be maintained unless a claim therefor is presented to the executrix and is rejected prior to the beginning of the action (Code Civ. Proc., secs. 1493, 1500). The most that can be said of this complaint is that it states a cause of action for money upon an implied contract against the decedent. It is, therefore, insufficient, because of the failure to allege the presentation of the claim. If the intention was to charge the defendant executrix as trustee of specific property, the complaint should have contained allegations showing that she had come into possession of such property and that it was charged with a trust in favor of the plaintiff. No allegations tending to show such a case are contained in the complaint. Furthermore, there are no allegations to uphold a personal judgment against the executrix, and a judgment upon a demand against the decedent should have been made payable out of the assets of the estate in due course of administration. We find no ground upon which the judgment can be upheld.
The judgment and order are reversed.
Richards, J., pro tem., and Sloss, J., concurred.