Rogers v. Bank of America Nat. Trust & Sav. Ass'n

• Decision Date: 26 March 1956
• Citation: 294 P.2d 959,140 Cal.App.2d 228
• Court: California Court of Appeals Court of Appeals
• Parties: Roy A. ROGERS, Plaintiff and Appellant, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Administrator of the Estate of Elizabeth A. Rodgers, also known as Elizabeth A. Rogers and E. A. Rodgers, alias Lizzie Green, deceased, et al., Defendants and Respondents. Civ. 16687.

Page 959

294 P.2d 959

140 Cal.App.2d 228

Roy A. ROGERS, Plaintiff and Appellant, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Administrator of the Estate of Elizabeth A. Rodgers, also known as Elizabeth A. Rogers and E. A. Rodgers, alias Lizzie Green, deceased, et al., Defendants and Respondents.

Civ. 16687.

District Court of Appeal, First District, Division 2, California.

March 26, 1956.

R. A. Rogers, in pro. per.

Dreher, McCarthy & Dreher, San Francisco, for respondents.

NOURSE, Presiding Justice.

Plaintiff appeals from a judgment entered on the sustaining without leave to amend of a demurrer to his fourth amended complaint against the administrator of the Estate of Elizabeth A. (Green) Rodgers, hereinafter called the decedent. To all four prior drafts demurrers had been sustained with leave to amend. All demurrers contained among other grounds that the complaint did not state facts sufficient to constitute a cause of action and that plaintiff had no legal capacity to maintain the action. We have concluded that the fourth amended complaint also suffers from said and other defects.

The basis of the complaint in all its forms is that decedent allegedly stole or took by fraud from plaintiff's grandmother Flizabeth McConnell real and personal property, and that she commingled the moneys and securities so obtained with her own. Decedent was a daughter of the second marriage of Elizabeth McConnell, whereas plaintiff is the only issue of Maria T. Rogers, a daughter of the first marriage of Elizabeth McConnell. Elizabeth McConnell died in San Francisco on March 27, 1906. Several more descendants of hers are mentioned in the complaint--the children of decedent as defendants--but none of them seem to have been served and they are not parties to the action. It is further alleged that in September 1947 and April 1948 decedent informed plaintiff that she held property which belonged to plaintiff as his share in the estate of Elizabeth McConnell from whom she had wrongfully taken it, which matters she had fraudulently concealed from the heirs and next of kin of Elizabeth McConnell, and that decedent had then promised fully to account therefor to plaintiff, but that she left California on October 17, 1948 taking her possessions with her, and that she died in Georgia on March 8, 1950 without rendering the accounting promised.

Plaintiff timely filed his claim in the estate of decedent, but it was rejected. Plaintiff's prayer is in substance that he recover his share of the Estate of Elizabeth McConnell which decedent held for plaintiff's benefit, that the administrator of the estate of decedent account for the property so held and that a trust be imposed on the assets of the estate of decedent for the value of plaintiff's said interest.

The allegations as to decedent's depredations in the 4th amended complaint are brief. Many details contained in the 2nd and 3rd amended complaints among others as to the time of the alleged acts, are omitted from the last complaint allegedly on the ground that they were 'irrelevant, redundant and evidentiary.' It is not contended that they were incorrect or that the several complaints do not relate to the same facts. All complaints are verified. To the general rule that an amended pleading supersedes the prior one, which thereafter is disregarded, there is the well settled exception, that if a prior verified complaint contains allegations which make it fatally defective, the defect cannot be cured by omitting said allegations in the later complaint without proper explanation and the court may then still consider said omitted allegations. Owens v. Traverso, 125 Cal.App.2d 803, 808, 271 P.2d 164; Lee v. Hensley, 103 Cal.App.2d 697, 709, 230 P.2d 159; Slavin v. City of Glendale, 97 Cal.App.2d 407, 411, 217 P.2d 984.

With respect to the taking of real property the third amended complaint alleged in substance that decedent together with her first husband Alexander Montgomery by means of forged deeds transferred said real property to fictitious persons, unlawfully sold said properties and commingled the money received therefrom with their own. Alexander Montgomery died on November 4, 1893. Elizabeth McConnell thereafter engaged in the saloon business in San Francisco and died in Oakland on March 27, 1906. In the second amended complaint it is moreover alleged that 'plaintiff's grandmother, by reason of the said Lizzie Green, [decedent], having forged her name to the conveyances of said properties did from and after August 28, 1884 [the date of the marriage of decedent to Montgomery], and up to the time of her death, use the name of Elizabeth A. Inskip, alias Inskeep' [Inskip was the name of her first husband, Green the name of her second husband, the father of decedent]. It is also alleged in the second amended complaint that when Elizabeth McConnell in her saloon business accumulated an estate, she 'specifically refrained from acquiring any real property.' These allegations show that Elizabeth McConnell during many years prior to her death knew of the fraudulent real estate...