Page images

six per cent per annum. The principal was never paid, but on April 3, 1910, the maker of said note paid $150 as interest. On January 26, 1911, the plaintiff, as trustee, presented to the defendant as executrix of the estate of Tomb, his verified claim on said promissory note for principal and interest then due, and the said executrix rejected the claim. On the day and date of the execution of the note, Thomas B. Tomb, the more particularly to declare the purpose for the execution of said instrument, made a written declaration of trust in which he stated that he had placed in the hands of Henry M. Wisler the sum of $30,000 to be used, as provided in the declaration, for the support and education of the beneficiary Thomas Tomb Harbeson. The instrument was signed by Tomb and Wisler, the latter by the terms of the writing accepting the trust. Maria G. Tomb signed as a witness. Maria G. Tomb was then and there informed (to quote from the complaint) "that she had been appointed executrix of the last will and testament of said Thomas B. Tomb, deceased", and she then and there (to quote further) "consented to the said declaration of trust, and agreed that on the death of the said Thomas B. Tomb, deceased, she would in full, and in every particular, and without any exception whatsoever, carry out the said trust, and then and there agreed, that, upon the death of the said deceased she would immediately set apart the said thirty thousand dollars for the express purpose of carrying out the said declaration of trust, and would, as soon as she had qualified as executrix, pay over to the said Henry M. Wisler the said thirty thousand dollars, to be invested by him as provided in the said declaration of trust". We may say, in passing, that the ghostly implication of the earlier quotation that her deceased husband not only signed the declaration but talked to her about it, is cleared by the later excerpt from the pleading. Evidently the conversation at least was inter vivos and she was not really "appointed executrix" until after her husband had died, for we think a well known maxim may be varied to read "Nemo est executrix viventis".

The complaint contains further averments that "pursuant to said understanding", Mrs. Tomb, "both in and out of the probate department of the superior court of the county of Los Angeles, state of California, expressly admitted and consented that the said thirty thousand dollars was, as hereinbefore alleged, set apart and considered as a segregated fund from all of the other funds and moneys of the estate of the said deecased, Thomas B. Tomb, and on divers times and occasions offered to pay the said fund into the hands of a trustee, to be selected by herself, or a trustee to be nominated by the probate court of said county, other than the said Henry M. Wisler, to whom she objected as trustee"; that the said Maria Gartrell Tomb in all of the proceedings in and about the estate of Thomas B. Tomb, deceased, "recognized and treated the said thirty thousand dollars as a segregated trust fund belonging to said minor"; and that she never claimed that she was administering the thirty thousand dollars as a part of her deceased husband's estate, but treated it as a trust fund and offered to pay it into court should the court order her to take


such course. It is further alleged that during guardianship proceedings instituted by the father of the minor Thomas Tomb Harbeson, Mrs. Tomb consented in open court and offered to pay the segregated fund of thirty thousand dollars to the father, and on his resignation as guardian she offered to take the guardianship of the minor for the express purpose of holding the fund for his use and benefit. It is further averred in the complaint that upon petition and proceedings duly had thereunder the superior court on January 11, 1911, determined and adjudged that the trust was legal and that the appointment of Henry M. Wisler was confirmed. It is averred that since the death of Thomas B. Tomb defendant, as executrix of his estate, has held the thirty thousand dollars as a trust fund belonging to the minor Thomas Tomb Harbeson.

[1] Upon the authority of Tracy v. Alvord, 118 Cal. 655, the judgment must be affirmed. [2] In that case it was held that the gift of the donor's own promissory note, either inter vivos or causa mortis does not create an enforceable obligation in favor of the donee against the donor or his estate. Being a mere promise without consideration to give a sum of money in the future, such a note is of no legal consequence. Appellant seeks to differentiate the facts averred in his complaint from those considered in Tracy v. Alvord, supra. He calls attention to the language of the declaration by which Thomas B. Tomb states that he "has placed" thirty thousand dollars in the hands of the trustee. This amounts to a statement, say appellant's counsel, that Tomb had placed in the trustee's hands thirty thousand dollars in cash and justifies the assumption that afterwards Wisler, as trustee, loaned the thirty thousand dollars to Tomb. Such an assumption, even if it logically arose from the supposed facts indicated by the declaration of trust, would not save the complaint, because the mere incorporation of the declaration into the pleading does not amount to an allegation of the matters therein set forth as facts. If indeed Tomb paid the money to the trustee and afterwards borrowed it, giving the promissory note as evidence of the debt, it would be easy to plead such a state of facts. No such pleading is presented. On the contrary, we find the averment that the declaration of trust was made "on the day and date of the execution" of the note and "in order to more particularly declare the purpose for the execution of the said note". Any presumption of consideration which might arise in an action on the note itself, is overcome by the allegations regarding the trust. The claim against the estate was upon the note itself and therefore the action may not be supported by a mere introduction of the declaration of trust which by the tense of one of the verbs might support a theory that Thomas B. Tomb paid the money to Henry M. Wisler, as trustee, and immediately borrowed it. Even construing the complaint in the light most favorable to the pleader, it appears that the whole transaction was on paper. The attempt to donate the money in trust lacked the essential of all gifts, unconditional delivery. Wanting that requisite element it was

"no more than an unexecuted and unenforceable promise to make a future gift". (Beebe v. Coffin, 153 Cal. 177.)

[3] A note intended as a mere gift with no other consideration than natural affection cannot form the basis of an action at law. The gift is always revocable until it is executed, and a promissory note intended as a gift is but a promise to make a gift in the future. The gift is not executed until the note is paid. (Williams v. Forbes, 114 Ill. 171.)

The judgment is affirmed.

We concur:



L. A. No. 3826. Department Two. February 17, 1915. JESSE M. BELL, Plaintiff and Appellant, v. HUGH I. KRAUSS and BIRDIE M. KRAUSS, his Wife, and AILEEN BELL, a Minor, Defendants and Respondents.

L. A. No. 3879. Department Two.

February 17, 1915.

In the Matter of the Adoption of AILEEN BELL.

[1] PARENT AND CHILD-ADOPTION PROCEEDING-LACK OF KNOWLEDGE OF FATHER-VACATION OF ORDER-RELIEF UNDER SECTION 473, CODE OF CIVIL PROCEDURE.-Where an order of adoption is made without giving the father of the minor any notice of the proceedings or without obtaining his knowledge or consent thereto, he is entitled to be relieved from the order under section 473 of the Code of Civil Procedure on the grounds of surprise and excusable neglect, notwithstanding that the custody of the minor had been awarded to the mother in a decree of divorce granted to her on the ground of wilful neglect, as the placing of the infant in her charge is not such judicial deprivation of the custody on account of the neglect of the father as is contemplated in section 224 of the Civil Code.

[2] ID. APPLICATION FOR RELIEF RUNNING OF STATUTORY PERIOD DATE OF FILING OF ORDER-APPLICATION NOT IN TIME.-An application for relief from such an order under the code provision runs from the date of the filing of the order and not from the date upon which it is docketed and entered, and the application herein not being made within six months after the filing of the order, it is held the same was properly denied as being too late.

[3] ID.-ID.-ACTION TO VACATE DECREE-DEMURRER IMPROPERLY SUSTAINED.-It, however, is also held that the complaint in the action previously commenced by the father against the persons adopting the minor to set aside the order of adoption on the same grounds as those afterwards specified in the notice of motion to vacate the order under section 473 of the Code of Civil Procedure, was good and that the demurrer thereto was improperly sustained.

Appeal from the Superior Court of Los Angeles County-Fred H. Taft, Judge.

For Appellant-J. L. Fleming, W. S. Knott, C. W. Hatton.

For Respondents-Schweitzer & Hutton.

On September 4, 1913, Hugh I. Krauss and Birdie M. Krauss.

his wife, petitioned for permission to adopt Aileen Bell, a minor child then six years of age. On the same day the court made an order of adoption which was signed and filed September 4, 1913, but docketed and entered on the 8th day of September, 1913. On March 2nd, 1914, Jesse M. Bell, father of the minor child served and filed notice of a motion to be relieved from the consequences of said order, specifying in said notice Monday, the 9th day of March, 1914, as the day upon which he would make the motion. In his said notice of motion he announced that he would apply for the desired relief on the grounds that he was not a party to the adoption proceeding; that he had no notice thereof and did not consent thereto; that he was able and willing to care for his daughter and to provide her with a suitable home; that he was entitled to the custody of the infant; was a proper person to have such custody, and that he had never been judicially deprived of the possession of said minor on account of cruelty or neglect nor by reason of failure to provide. He also averred that he had not been dispossessed of civil rights nor divorced upon the grounds of cruelty or adultery and that he had not been adjudged habitually intemperate. At the hearing of this motion petitioner introduced in evidence an affidavit setting forth the same matters in more elaborate form.

The motion of Mr. Bell was resisted and Mr. Frank S. Hutton, one of the attorneys for Mr. and Mrs. Krauss, filed an affidavit in which he set forth, among other things, that on October 15th, 1913, Jesse M. Bell had commenced an action against Mr. and Mrs. Krauss to set aside and vacate the order of adoption theretofore made. He averred that in the said action Bell had sought to annul the order of adoption on the same grounds as those afterwards specified in his notice of motion to vacate said order; that the defendants had demurred to the complaint; that the demurrer had been sustained, and that judgment had been duly entered, upon default of plaintiff, in January, 1914. The affidavit of Mr. Hutton also contained the statement that in an action for divorce between Leila F. Bell and Jesse M. Bell, the latter, by the judgment of the court, had been judicially deprived of the custody of his daughter by reason of cruelty and neglect.

Jesse M. Bell thereupon introduced in evidence the complaint and the decrees in said action for divorce. By order made March 9, 1914, the motion to vacate the order in the adoption matter was denied. From said order denying his motion Jesse M. Bell appeals. He also appeals from the judgment mentioned in Mr. Hutton's affidavit and by stipulation of the parties both appeals were considered by this court at the same time.

The action commenced as aforesaid by Jesse M. Bell was against Mr. and Mrs. Krauss and the minor child Aileen Bell. It set forth substantially the same facts appearing by the affidavits and the exhibits in the later proceeding upon his motion under section 473 of the Code of Civil Procedure to be relieved of the order of adoption. The pleadings and decrees in the action for divorce; the awarding of the minor child to her mother;

the death of the mother on August 19, 1913; and the adoption proceedings held without any notice to Jesse M. Bell and without his knowledge or consent were all set forth in the complaint as well as allegations of his fitness for and right to the custody of his child. It was alleged that at the time when the adoption proceedings were instituted Jesse M. Bell resided in Los Angeles, his place of residence being well known to Mr. and Mrs. Krauss, but that they made no effort to secure his consent to the adoption nor did they give him any notice thereof but "on the contrary, wilfully and intentionally concealed from him the fact that they were about to institute such adoption proceedings and kept the same carefully concealed from him until after the order of adoption had been made therein".

The prayer was that the order of adoption be declared to be null and void, that it be vacated and set aside, that the minor child be restored to the plaintiff and for general equitable relief.

We are not favored by a brief from the respondents and therefore are not informed regarding the theory upon which the demurrer was sustained or the application for relief in the adoption proceedings denied.

[1] Examining the application for relief under section 473 of the Code of Civil Procedure we will first consider the order which is attacked. There was no denial by the petitioner for leave to adopt Aileen Bell that the court's order was made without the presence or consent of the child's father and that he knew nothing of the proceeding. The recital in the order regarding the father of Aileen Bell is "that the father of said child has been judicially deprived of the custody of said child, by reason of neglect and failure to provide". The corresponding allegation in the petition is "That the said parents were, on the 21st day of July, 1909, divorced one from the other, and in the interlocutory decree of divorce bearing the said date, the custody of said minor child was awarded to the mother upon the ground of neglect, failure to provide and desertion of said mother and said minor child." But the interlocutory decree and the final decree in the divorce action fail to support either the allegation in the petition or the finding of the court. The divorce was granted to Leila F. Bell from Jesse M. Bell upon the ground of failure to provide, the custody of Aileen was awarded to the mother and payment of a monthly sum for the child's support was ordered. There was no finding that the father was an unfit person to have possession and control of the child. The placing of the infant in charge of the mother was not such judicial deprivation of the custody of the child on account of the neglect of the father as is contemplated in section 224 of the Civil Code. Divorces are not granted for offenses against children and the bestowal of the custody of a minor in a divorce action is not, unless otherwise provided by statute, an adjudication of the fitness of the parent who is for the time denied the right to retain possession of the child. It is nothing more than the expression of the court's belief that under the circumstances then existing the welfare of the child would be best subserved by placing said child with

« PreviousContinue »