3 Wash. 213 | Wash. | 1891
The opinion of the court was delivered by
The demurrer of the defendant Lichty to the amended complaint, for want of sufficient facts, having
The complaint shows the following facts: Before his death, August 7, 1874, Walter P. Mabry was the owner of a certain 157 acres of land, in Yakima county, which we will designate as “ tract 1; ” and, being a man of family, on the 14th day of November, 1871, filed and settled upon a certain other 160 acres of government land, in said county, which we shall call “tract 2,” as a homestead.. His wife died between the time of his settlement on tract 2 and the time of his own death. He complied with the homestead laws up to the time of his death; and he left surviving him six children, viz.: Emma F.,.who had passed her majority when her father died; James A., aged fifteen; Charles A., aged eleven; Mary A., aged nine; Henry W., aged seven; and Clara C, aged four years. Mary A. intermarried with the defendant, Daniel W. Simmons, before the action was commenced. Mabry left a will, which named George S. Taylor as executor, and directed that the title to the homestead be perfected; that all of decedent’s real estate in Yakima county be sold at such time as the same would realize the sum of $6,000; that the proceeds of all his property, both real and personal, be equally divided among his said children, except that James should have $50 extra; that each of the minor children should be maintained and educated out of his or her individual portion of the estate; that the executor provide suitable homes for thecminors; and that each of the children should, on arriving at the age of maturity, receive his or her due proportion of the estate. Taylor qualified .as executor, after
On the 21st day of August, 1874, Thomas B. Nelson was duly appointed guardian of the minor children of Mabry, they continuing to reside in Yakima county, and he acted as their guardian until each child attained majority, receiving the cost and expense of their care and education from time to time, from the executor, out of the proceeds of the estate. On May 22, 1880, Nelson made the necessary proofs under the homestead laws, and received from the United States a certificate of entry for tract 2. The executor took possession of both said tracts of land, and had the rents and profits thereof until the sale hereinafter mentioned. At this point we quote from the amended complaint as follows:
“ That on November 20,1882, the said executor having been offered for all the said lands aforesaid of the decedent situated in Yakima county, Washington Territory, to wit (both said tracts), filed his petition in said court for the sale of said lands in accordance with the provisions of the will of the decedent, and on the 29th day of November, 1882, the said court duly made and entered an order authorizing and empowering the said execu or to sell at public sale, to the highest and best bidder, all of said real estate aforesaid belonging to the estate of decedent, provided that the same be sold for not less than $6,000. That in pursu-' anee of such order the said executor did, after notice thereof duly given as provided by law, on December 26,1882, sell said lands aforesaid at public auction to the highest bidder therefor, and Thomas Clancy having bid therefor the sum of $6,050, the same was struck off and sold to him for the said sum; $2,000 of which sum, as required by said order, was paid by said Clancy in cash. That on January 3,1883, the said executor filed his return and report of said sale in said court, and the said sale and all proceedings thereunder were in all things by said court duly confirmed and a deed ordered made accordingly, and on March 10,1883, the pur*217 chase price all being paid, said executor duly executed and delivered to said purchaser a deed for the said lands, and every parcel thereof, which deed was filed in the auditor’s office for record in Yakima county, and said purchase price, to wit, $6,050, was charged to said executor as funds in his hands belonging to said estate, to be distributed in accordance with the terms of said will.
“ That after the sale of said lands to said Thomas Clancy, to wit, on February 15, 1883, said Clancy, for value, sold and conveyed the same to plaintiff and M. V. B. Stacy, and on March 17, 1883, for further assurance of such title to said vendees of Clancy, James Mabry and Emma F. Nelson, both being of the age of majority and both having filed their consent in writing to such sale by said executor, executed and delivered to plaintiff and said Stacy, a deed conveying to them said lands aforesaid, and all their interest therein.
“That on March 26, 1883, the said Thomas B. Nelson, guardian of the persons and property of said minors, for further assurance of title to said lands to plaintiff and M. Y. B. Stacy, filed his petition in said probate court for leave to seil and convey whatever interest his said wards mighthavein said lands, and the said court then duly made an order authorizing and directingthat saidguardian make and execute such conveyance, which conveyance was made on May 8,1883, whereby said guardian executed and delivered to said plaintiff and said. Stacy, a conveyance of all the right, title and interest of his said wards, Mary A., Henry, Charles A. and Clara C. Mabry in and to all of said lands.”
Stacy and plaintiff, immediately after their purchase from Clancy, went into possession of both tracts of land, and so remained until February 19,1884, when Stacy conveyed his interest to plaintiff, who has ever since been in possession, claiming title under his deeds, making improvements, paying taxes, etc. The Mabry heirs never asserted any claim to either tract. In 1889 the plaintiff complied with some technical requirements of the land office, and thereupon a patent was issued for tract 2. The executor
The court below found that the defendants Mabry, after attaining majority, elected to take under the provisions of the will of their father, instead of as his heirs, and ratified the sale made by the executor, with full knowledge of the facts; and it decreed all things in accordance with the prayer of the complaint, as well as that the defendants, and each of them, should be enjoined from the assertion of any estate or interests in both tracts. The costs were charged to the defendants, and each of them.
It seems to us that no cause of action was stated against any of the defendants, except Lichty. Simmons was merely the husband of one of the Mabry heirs, and could not, by any possibility have or claim any interest in this land. Saylor somehow got hold of the patent, which, presumably, contained the names of Mabry’s minor children as grantees, but to obtain it from him a personal action at law was all that was necessary. So far as the quitclaim deeds were concerned he is a stranger to them, for Lichty is the grantee, and there were no allegations that Lichty was in any way a trustee for Saylor.. It is stated that Saylor and Lichty “now openly claim an interest in said lands aforesaid, under said quitclaim deeds; ” but however Saylor might “claim,” unless he claimed that Lichty held this title to some extent as trustee for him, he could not be a proper or necessary party in a case where, as here, the whole attack is made upon the obnoxious deed. As to the defendants Mabry and Mrs. Simmons (nee Mabry), it appears by positive allegation that they claimed nothing as against the plaintiff even when executing their deeds for |25 each, and surely after they had delivered their deeds they were divested of all further possible reason for asserting any interest, and. it is not shown that they did or do
The appellantsmaintainupon the principal issue that all of the proceedings of the probate court resulting in the deed of the executor and the guardian for tract 2 to Clancy were absolutely void, because Walter P. Mabry died before his right to patent had matured, and he leaving no wife, under section 2292 of the revised statutes of the Unitid States the “right and fee” to the patent and the land inured to his minor children instantly and without power of devise in him. It will be observed that if the interpretation proposed by the appellants for the above mentioned statute is sustained, it would follow that the executor wrongfully included tract 2 in his inventory, since it did not belong to the decedent’s estate, but to the Mabry children, to the exclusion of Emma, who was of age, and of all creditors; and that the only way in which the probate court could have acquired any jurisdiction over it was through its authority over the estate of the minors, which was not invoked. In the view we take of this case, however, we do not find it necessary to decide this point. Sufficeitto say that therespondent meets it bytwo propositions —(l)That found by the court below, viz.,that these minors, after the age of maturity, elected to take under the provisions of the will of their father, instead of as his heirs, and ratified the executor’s sale with knowledge of the
We do not agree with the court below that this was a case of election. The language of the will is not set out in the complaint, and taking the allegations upon the demurrer most strongly against the pleader, the reasonable construction would be that the testator, mindful of the pro- „ visions of the law, that, upon his death, would vest the right to patent and the fee of the land in his children, he directed the title to the homestead to be perfected for them, and that his land, viz., tract 1, be sold when f6,000 could be realized from it. This is, of course, upon the assumption that appellants’ view of the homestead law is correct. We have found no clearer statement of the law in regard to elections under a will than that in Toney v. Spragins, 80 Ala. 541, where it is said:
“In a judicial interpretation of the will, and ascertainment of the real intent, the court will act on the presumption that the testator intends only to charge what belongs to him. When the testator owns a partial or future interest in the property devised, the established rule is that the courts will strongly lean in favor of a construction which shows an intent to give only the interest, of which he has the power of disposition, and with which he is authorized to deal by virtue of his own rights; and will require clear and unambiguous expression, expressly or by clear and manifest implication, of an intent to devise the entire property. To compel an election it must satisfactorily appear that the testator attempted to dispose of what he did not own. ... If the expressions of the will are ambiguous, or doubtful, and the court cannot determine that it was manifestly the intention to dispose of property not the testator’s own, the prima facie presumption will prevail.”
Upon the question of the estoppel, we must, for the purpose of the decision, again assume ths law concerning the homestead to be with the appellants. We have, then, the probate court assuming a jurisdiction not warranted by law, and directing the sale of property belonging to the Mabry minor heirs; the executor making the sale, in a lump, of both tracts, for a sum larger than that mentioned in the will'; the proceeds of the sale going into the general funds of the estate, where it was subject to the claims of creditors and the expenses of administration; and the guardian, for the sake of greater certainty to the purchaser, required to go through the form of a sale, the result of which was nothing to the estate of his wards, except as it was thereafter doled out to him by the executor. We also have the purchaser seeking out two of the heirs, who were then of age, Emma and James, and procuring from them quitclaim deeds, showing some fear on his part that his title was not altogether safe. And over against these matters, all of which make for the appellants, we have only the fact that the other four minors, two of whom came of age in 1884, and two in 1888, as they passed majority, had settlements with the executor, received from him a proportional share of the estate, as though tract 2 had been governed by the will, and made no objection to the proceedings resulting in the deeds to Clancy, nor any claim that tract 2 was not the land of the plaintiff. In short, reduced to its lowest terms, we have A assuming to sell and convey, as his own, the land of B to C, for a consideration not alleged to be sufficient, and B, after years of
Appellants insist that in this case the Mabrys took the money from the executor as they found it, and had a right to receive it as the proceeds of tract 1 alone, which he had a right to sell under the will for $6,000; that the purchaser being bound to know the law, he bought with constructive knowledge of all imperfections in the titles assumed to be conveyed to him, and must be taken to have offered and paid the $6,050 for tract 1, without considering tract 2, which he knew the executor could not sell; and that the doctrine of estoppel cannot apply where the party who asserts it had knowledge of all the facts. But to sustain
As to him the decree will be affirmed with costs, excepting that all reference to tract 1 will be stricken out; as to the other appellants it will be reversed with costs, and the complaint dismissed.
Anders, C. J., and Scott, and Dunbar, JJ., concur.
Hoyt, J., concurs in the result.