Herrick v. Everhart
| Decision Date | 29 March 1966 |
| Citation | 50 Cal.Rptr. 454,241 Cal.App.2d 195 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Robert W. HERRICK et al., Plaintiffs and Appellants, v. Robert M. EVERHART, as Executor, etc., et al., Defendants and Respondents. Civ. 28375. |
Fadem & Graves and Ernest L. Graves, Los Angeles, for plaintiffs and appellants.
Hart & Mieras and Henry F. Walker, Los Angeles, for defendants and respondents.
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.
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.
During Winfred's lifetime he fully performed his part of the agreement and placed all of his separate and community property in the form of joint tenancies with Clara. Upon his death on April 7, 1951, Clara acquired in her name sole title to all of this property as surviving joint tenant. Throughout the remainder of Clara's lifetime plaintiffs had no reason to suspect that she did not intend to perform the duties of the trust. Clara died on October 30, 1961. Her will was admitted to probate and letters testamentary were issued to the defendant executor on December 20, 1961, who now has possession of the subject property.
This action was filed June 20, 1962. The prayer of the complaint is that the court determined the nature, extent and value of the property left by Winfred, declare that the defendant executor holds such property in trust for plaintiffs, and enforce the trust.
The demurrer to the second amended complaint stated three grounds: (1) Failure to state a cause of action; (2) The bar of the statute of limitations as set forth in Code of Civil Procedure, section 338, subdivision 4; (3) Uncertainty as to the date of the alleged contract and the consideration. The minute entry made by the court on December 10, 1963, is as follows:
In substance, the complaint alleges that Winfred conveyed property to Clara in consideration of her promise to hold it in trust for plaintiffs, and that this property now is in the possession of her executor. D...
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