Curran v. Kennedy

Sharpstein, J.

— The plaintiff, as administrator of the estate of Thomas Cushing, deceased, sues the defendants as executors of the last will and testament of Phillip Kennedy, deceased, and alleges, in substance, that said Phillip Kennedy, in his lifetime, was the duly appointed administrator of the estate of said Thomas Cushing, deceased, and that said Phillip Kennedy, as such administrator, received $2,670.93 from the National Life Insurance Company of the United States of America on a policy of insurance upon the life of Thomas Cushing, for which he, said Phillip Kennedy, never accounted to the estate of said Thomas Cushing, and that said Phillip Kennedy died before the completion of his duties as administrator of the said estate of said Thomas Cushing.

For a separate and second cause of action, plaintiff alleges that said Phillip Kennedy, as administrator of the estate of said Thomas Cushing, received other personal property, of the appraised value of $130, for which he never accounted.

The complaint was demurred to on various grounds, and the demurrer overruled, and properly overruled, we think. A motion to strike out the amended complaint and the amendments thereto was properly denied.

Conceding that the objections to questions put to the witness Garness should have heen sustained, and that the court erred in overruling them, the error was a harmless one. The witness did not contradict or vary anything contained in the copy of the policy attached to the complaint, which the defendants admitted to be a true copy.

Whether the court erred in denying the defendants’ motion for a nonsuit depends upon the evidence then before the court, and we think there was sufficient to justify the order denying said motion.

The appeal was not taken within sixty days after the rendition of the judgment, and the exception to the decision, on the ground that it is not supported by the evidence, cannot be reviewed. (Code Civ. Proc., sec. 939.)

Appellant assigns as error the failure of the court to find upon material issues, which are specified as follows: “ The court fails to find on the issue on the first cause of action alleged, as to whether or not the alleged insurance company was ever incorporated, or was incorporated or had an existence.”

Conceding that this was a material issue, which we do not, the court found “that Thomas Cushing, plaintiff’s intestate, had insured his life for three thousand dollars with the National Life Insurance Company of the United States of America, a corporation formed by special act of Congress of said United States,” which we deem a sufficient finding upon that issue; and we think it a sufficient finding that the said Thomas Cushing entered into a written contract of insurance, as alleged in the complaint and denied in the answer. A copy of the alleged contract was attached to the complaint, which was admitted by the answer to be a true copy of said contract.

Upon the issue raised by the allegation, and denied, that Phillip Kennedy did not account for the sum received by him upon said insurance policy, the court found that Phillip Kennedy, in his capacity of administrator of the estate of said Cushing, and for the use of said estate, received $2,672.25, the proceeds of said policy, and failed to account with the estate of said Cushing for $2,642.25, a portion of said proceeds. We think this a sufficient finding on that issue.

The finding “ that on the ninth day of July, 1887, letters of administration of the estate of said Cushing, deceased, were issued by the superior court of Marin County, state of California, to plaintiff herein; that said letters have not since been revoked,”—is a sufficient finding upon the issue raised by the allegation and denial that an order of said court was duly given, made, and entered, appointing said plaintiff administrator of said estate of said Thomas Cushing, deceased.

Judgment affirmed.

De Haven, J., McFarland, J., Paterson, J., Garoutte, J., and Harrison, J., concurred.

Rehearing denied.