Procedural Posture

Plaintiff heir challenged the decision of the Superior Court of Alameda County (California), which sustained defendant executor’s demurrer in an action for recovery of a sum that the heir alleged was due to him by the terms of a contract.

Nakase Law Firm practice business law


The heir and his siblings entered into a contract agreeing to equally divide the residue of their father’s estate. The heir demanded payment of his share from the executor numerous time, but the executor refused to pay the heir. On review, the court reversed and remanded. The court found that the executor deliberately refused to do that which, in legal effect, he had agreed and was required to do. The court determined that the executor’s actions were a breach of contract which gave the heir a right of action for the sum stipulated and due thereunder. The court also determined that the contract was an agreement of heirs apparent not to contest the will of an ancestor and the making and enforcement of such a contract was not prohibited by statute. The court concluded that the heir’s complaint was free from defect and stated a cause of action; the executor’s demurrer thereto was improperly sustained.


The judgment was reversed and the cause remanded, with instructions to overrule the demurrer and require the executor to answer.

By admin