Kirsch v. Derby

Action against Executor — Pleading — Probate op Will — Executor-ship op Dependant. — The probate of a will and the executorship of a defendant who is sued as such executor are sufficiently averred in a complaint which alleges the fact and date of death of the testator leaving a will in which the defendant was named as executor, the fact and date of the filing of the will by the executor in the office of the clerk of the superior court, together with his petition for the probate thereof and for letters testamentary, and that, upon proceedings duly had in said court, said will was duly admitted to probate upon a specified date, whereupon letters testamentary were ordered to issue to him, upon his qualifying as required by law, and that he duly qualified as such executor, and letters testamentary were thereupon issued to him at a date specified, and that ever since he has been and now is the duly qualified and acting executor of the said will. Id.—Money Had and Received—Personal Liability op Executor.— A complaint by the surviving husband of a testatrix against the executor of his deceased wife, alleging that as such executor he has received from a savings bank a sum of money “ to and for the use of and belonging to the plaintiff, ” which the defendant has refused to pay to the plaintiff upon demand, states sufficient facts for a personal judgment against the executor. Pleading—Complaint —Ambiguity—Uncertainty—Special Demurrer — Appeal prom Default Judgment, — If there are any valid objections to a complaint on the ground of ambiguity or uncertainty, such objections can only be taken by special demurrer, and cannot be urged upon appeal from a judgment by default.

Appeal from a judgment of the Superior Court of Alameda County. The action was brought against the defendant, as executor of the estate of Julia Kirsch, deceased, to recover the sum of $3,725, alleged to have been received by the defendant as such executor from the German Savings and Loan Society, “ to and for the use of and belonging to plaintiff,” which the defendant refused to pay to plaintiff upon demand made therefor. The complaint alleges that Julia Kirsch, the wife of plaintiff, died in Alameda County, March 28, 1890, leaving a last will, in which she appointed J. S. Derby as executor; that J. S. Derby, on April 3, 1890, duly filed said will in the office of the county clerk and clerk of the superior court of said county, together with his petition for the probate thereof, and for letters testamentary thereon; that on May 5, 1890, upon proceedings duly had in that behalf in said superior court, said will was duly admitted to probate by said court, and letters testamentary thereon were thereupon ordered to issue by said court to said J. S. Derby upon his qualifying as required by law, and that on May 8, 1890, said J. S. Derby duly qualified as such executor, and letters testamentary were thereupon issued to him by the clerk of said court, and that ever since said eighth day of May he has been and now is the duly appointed, qualified, and acting executor of the said will of said Julia Kirsch, deceased.