King v. Wilson
| Decision Date | 24 February 1950 |
| Citation | 96 Cal.App.2d 212,215 P.2d 50 |
| Parties | KING v. WILSON et al. Civ. 17356. |
| Court | California Court of Appeals Court of Appeals |
John J. McMahon and Richard H. Hall, Los Angeles, for appellant.
Walter G. Danielson, H. Spencer St. Clair, Los Angeles, for respondents.
This is an appeal from a judgment following the sustaining of a demurrer to plaintiff's second amended complaint without leave to amend.
The defendants are Wilson, as executor and individually, together with one Brewer and wife. Plaintiff alleges that she was the lawful wife of decedent King at the time of his death; he left no relatives or heirs in California other than plaintiff; he left real and personal property valued at approximately $150,000; during his lifetime he conveyed property to Wilson and Brewer upon their agreement to reconvey it upon demand; the property is an asset of the estate and Wilson and Brewer held title thereto as trustees; Wilson as executor filed an inventory in the proceeding to probate decedent's will showing the value of the estate to be $200. The prayer of the pleading is that it be decreed that defendants Wilson and Brewer hold title to the property in trust for the benefit of, and that they be compelled to reconvey it to, the estate.
The only grounds of the demurrer argued upon the appeal are (1) that the second amended complaint does not state facts sufficient to constitute a cause of action, (2) that plaintiff has not legal capacity to sue. The demurrer was properly sustained on both grounds.
An action for the recovery or possession of property belonging to an estate may be maintained by the executor or administrator. Prob.Code, sec. 573. An heir cannot maintain such an action for want of capacity to sue and for inability to state a cause of action. Holland v. McCarthy, 177 Cal. 507, 509, 171 P. 421. The superior court sitting in probate has jurisdiction to determine title to property when the interest of the executor as such is adverse to his interest as an individual, but is without power to try a question of title as between the estate and strangers thereto. Stratton v. Superior Court, 87 Cal.App.2d 809, 811, 197 P.2d 821; Bauer v. Bauer, 201 Cal. 267, 271, 256 P. 820.
If an executor or administrator has wasted, embezzled or mismanaged the estate or has committed a fraud upon the estate or neglected to perform any act required of him, one of the requirements being to recover property belonging to the estate, his letters may be revoked. Prob.Code, sec. 521.
An executor or administrator may be required to include in his inventory all property not previously included therein and his failure so to do is cause for his removal. Prob.Code, sec. 611.
Since Wilson as executor cannot sue himself as an individual, if, upon proper...
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Lauderdale v. Permanente Medical Group, Inc.
...are suing in their individual capacities, however, they lack standing to assert claims for her injuries. See King v. Wilson, 96 Cal.App.2d 212, 213-14, 215 P.2d 50, 51 (1950) (heir who was not administrator of estate lacked capacity to sue on deceased's cause of action). 2 Moreover, even if......
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King's Estate, In re
...without leave to amend. In November, 1948, the action of the lower court sustaining such demurrer was affirmed in King v. Wilson, 96 Cal.App.2d 212, 215 P.2d 50. On June 6, 1946, Gladys King filed another action against Griffin W. Wilson as executor of the estate herein, on a rejected, amen......
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Brewer v. King
...the trial court sustained without leave to amend. Appellant prosecuted an appeal from that decision which was affirmed in King v. Wilson, 96 Cal.App.2d 212, 215 P.2d 50. (February 24, On June 6, 1946, appellant filed an action in the superior court in Los Angeles county (No. 515,154), again......
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Bohn v. Smith
...of the decedent's estate; to establish their interest in her property as her heirs; or to seek the remedy suggested in King v. Wilson, 96 Cal.App.2d 212, 214, 215 P.2d 50.) The judgment is GERALD BROWN, P.J., and WHELAN, J., concur. 1 Other cases applying the real property rule are: Phelan ......