Sparks v. De la Guerra

Citations

• 14 Cal. 108

Syllabus

<p>Bill filed by a judgment creditor of J. upon order of Court permitting it, against defendants as executors.' Bill avers that the will of deceased “ directed, by mitten or oral instructions,” the executors to sell certain cattle, and retain the proceeds for the use and benefit of J. after first discharging his then debts. That it also declared that he, the testator, had made a secret assignment for J. which the executors would carry into effect according to his instructions, when convenient. Bill charges that defendants have not sold the cattle, but have converted them to their own use. Held, that a demurrer was properly sustained; that a pleading must be taken most strongly against the pleader, and that there is no law giving effect to an oral instruction of a testator, as a will, or part of a will; and that the creditor of J. can have no more rights than J. himself.</p> <p>At most, J. is only a legatee, and the executors the Trustees of the legacy. And the bill, not stating that the estate is settled, nor that the property or the money is not necessary to pay off debts or expenses of administration, nor that J. would be entitled, before final settlement, to his legacy, without tendering a refunding bond, cannot be maintained.</p>