Elftman v. Merrill

Max A. Elftman died on January 29, 1955. Soon thereafter letters testamentary were issued to his brother, Oscar Elftman the appellant, and to his sister-in-law, Bonnie W. Merrill the respondent, as joint executor and executrix of the will. The decedent conveyed a piece of real property to Mrs. Merrill four days before he died. The executor filed a quiet title action against her as executrix and individually to recover the property, so transferred, for the estate, the basis of the action being that the testator was incompetent at the time the deed was executed. It is alleged in the complaint that Bonnie W. Merrill in her capacity as executrix is named as a defendant because she refuses as executrix to act as a plaintiff. The relief actually sought is against her only in order to get the property deeded to her personally into the estate. The answer to the complaint begins, ‘1 Comes now the defendant Bonnie W. Merrill, sued herein individually and as Executrix” etc., and then in paragraph III thereof “ [a]dmits that Bonnie W. Merrill, individually, claims and asserts title in fee simple in and to certain real property adverse to said plaintiff, as such executor, and Bonnie W.…