Evans v. Gerken

Citations

• 105 Cal. 311
• 38 P. 725
• 1894 Cal. LEXIS 1155

Syllabus

<p>Pleading—General Demurrer—Consent to Ruling—Waiver.—The ground of a general demurrer is neither waived by failure to demur nor by consent that the demurrer be overruled.</p> <p>Id.—Action on Bond of Executor—Sufficiency of Complaint.—A complaint in an action upon an executor’s bond which alleges that the executor was appointed, that letters testamentary were ordered to be issued to him upon his executing a bond according to law, and that the executor and sureties duly made and executed the bond required by the order, sufficiently alleges compliance with the requirements of the statute, as against a general demurrer, although the complaint does not specifically allege that the bond sued on was approved by the judge or was filed or recorded, or that a certificate of justification was attached thereto.</p> <p>Id.—Misappropriation of Money by Executor—Sale of Realty—Bond —Irrelevant Defense—Striking Out Answer.—In an action on an executor’s bond for misappropriation of moneys which he failed to pay over to the distributees, it is no defense that the moneys were derived from the sale of realty belonging to the estate which the executor had been permitted to sell without giving the additional bond required by law, and such defense may be properly stricken from the answer as irrelevant and redundant.</p> <p>Id.—Estates of Deceased Persons—De,oree of Distribution—Liability of Executor and Sureties. —A decree of distribution of the estate of a deceased person fixes the liability of the executor, and is conclusive upon his sureties who are liable upon their undertaking to the full extent of the penalty, regardless of whether an additional bond has been given or not.</p>