Fox v. Sutton

On the death of Stephen Powell Burdick there was on deposit in the First National Bank of Oakland

Upon this stipulation being entered into, the money was turned over to the executor, and in his final account it is stated that the balance of said money remaining in his hands amounted to sixteen hundred and fifty-seven dollars and ninety cents. Upon the settlement of the. executor’s final account, Alice H. Burdick, surviving widow of the deceased, petitioned the court for distribution of the one-half of said sum to her, on the ground that the whole of said money so received by the executor was community property, and belonged to the estate of her deceased husband. The defendants, Sutton and Arthur W. Burdick, as said trustees, opposed said petition of distribution, and asked that the money be turned over to them, under the terms of their trust deed. The court denied the petition of the defendants Sutton and Arthur W. Burdick, and also denied their motion for an order staying distribution until they could, by action in a court of competent jurisdiction, have their respective claims to said money adjudicated and determined; and thereupon ordered distribution according to the prayer of the petitioner, Alice H. Burdick.

This court dismissed the appeal of said Sutton and Arthur W. Burdick, as trustees, and of said Burdick in his own right, saying : “They are not named in the will and claim no rights under it and have presented no claim against the estate. They are not, and could not have been aggrieved persons. The order refusing to postpone the decree of final distribution was not appealable.” (In re Burdick, 112 Cal. 396 .)

The plaintiff, Fox, thereupon, as such executor and individually, ‘brought this action. In his complaint the facts, some of which have been referred to, are fully stated, and it is “averred in said complaint that the plaintiff has no interest in the said eight hundred and twenty-eight dollars and ninety-seven cents, only as to which of the defendants shall receive the same, and is ready to deliver the same to the person entitled thereto, and prays that said defendants may be required to interplead together for the purpose of determining their respective claims to the said eight hundred and twenty-eight dollars and ninety-seven cents, and upon delivering the same to the party adjudged by the -court to be entitled thereto, or upon paying the same under and in obedience to any determination that may be had in the cause, the plaintiff may be discharged from all liability in the premises.

Upon filing his complaint the plaintiff obtained an order to show cause why an injunction pendente lite should not issue restraining the defendants, appellants here, from enforcing or attempting to enforce said decree of distribution. The defendants appeared and answered, and, as recited in the injunction order, “thereupon all of - the. parties being present and represented by counsel in open court, upon the records, files, and matters heretofore submitted to the court, under and in connection with said orders, and upon the records, files, and minutes of said court, at this time, for good cause shown, and no sufficient cause to the contrary being shown, and it appearing

The first point made by the appellants is that the plaintiff does not show the right of interpleader, because he did not bring the money into court, or offer to do so at the time of instituting this proceeding. The provision of the code in reference to interpleader, as the section originally stood, provided that a defendant "against whom an action is pending upon a contract, or for specific personal property, may, at any time before answer, upon affidavits that a party to the action makes against him, and, without any collusion with him, a demand upon such contract, or for such property, upon notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in court the amount claimed on the contract, or delivering the property or its value to such person as the court may direct." (Code Civ. Proc., sec. 386.) By way of amendment, in 1881, the following material provision has been added to this section: "And whenever conflicting claims are, or may be, made upon a person for or relating to personal property, or the performance of an obligation, or any part thereof, such person may bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. The order of substitution may be made and the action of interpleader may be maintained, and the applicant or plaintiff be discharged from liability to all or any of the conflicting claimants, although their titles or claims have not a common origin, or are not identical, but are adverse to and independent of one another.”

It is further contended by the appellants that the order of distribution is final and conclusive and estops plaintiff from maintaining this action.

The plaintiff, however, it appears, does not dispute the claim of the appellants, but seeks protection from the demands and claim of the other defendants for the same money, and who are not bound by the decree. Under such circumstances, it would seem but just that the plaintiff, as executor, should not be compelled to defend said action and subject himself, perhaps, to liability, not only to pay said money a second time, but also the costs of litigation. Besides, the plaintiff files his bill, not only as executor, but individually, whereas the decree of distribution runs against him, of course, only as executor.

The other points made by the appellants are not sufficiently important to require special notice or consideration under the facts disclosed by the record. We think the court below justified in granting the injunction as prayed, and the order is affirmed.

Harrison, J., and Garoutte, J., concurred.