74 Colo. 339 | Colo. | 1923
delivered the opinion of the court.
These parties are hereinafter referred to as in the trial court where plaintiff in error was defendant and defendants in error were plaintiffs.
Defendant’s husband George Cook (now deceased), was a beneficiary under the will of his father, and she was a beneficiary under the will of his mother. This action was brought to compel her to elect under which she would take. This writ is prosecuted to review the judgment which simply found the interests of the respective heirs of both testators in all the real property left by them and quieted title thereto.
Plaintiff James Cook filed a separate pleading in which he admitted the contract of partition and. that the tract in question was thereby allotted to George, who thereupon took and retained possession thereof until the time of his death. To that tract James Cook (who by decree is given an undivided one-third interest therein), at least up to the time of the final submission of this cause, made no claim. He can have no interest therein consistent with his theory of the transaction in question, nor be awarded what others
As we are unable to finally decide this cause in the pres-' ent state of the record we have scarcely hinted at the numerous and conflicting contentions, material and immaterial, dragged into it as it wends its way toward us from the hoary antiquity of fifty-three years. It seems to have been originally aborted into court by the filing, by defendant’s attorney, of a copy of a complaint, which had been served upon him but not filed by plaintiffs themselves, which James Cook promptly repudiated. At some time (not disclosed by the abstract) during the pendency of these proceedings James filed what he calls his “complaint and replication,” the allegations whereof are generally contrary to those set up by the plaintiff Charles K. Cook. James therefore might be denominated a plaintiff cle jure and -defendant de facto. The facts of this case were at best complicated, the pleadings further tangled them and the findings of the court aid us little in following their devious threads.
The judgment is reversed and the cause remanded for additional findings as to the material facts and further proceedings not inconsistent herewith.
Mr. Chief Justice Teller and Mr. Justice Allen concur.