45 Wash. 106 | Wash. | 1906
This action was brought by the respondent to quiet title to a large number of tracts of real estate in King county. Appellants, by answer and cross-complaint, claimed an undivided one-half interest in said property. Upon the trial, the court made findings in favor of plaintiff and against the defendants, and entered a decree quieting title in the plaintiff. From this decree the defendants appeal.
The facts are substantially as follows: Samuel Kenney and Jessie Kenney, during their lifetime, were husband and wife. The appellant John Kenney was a brother of Samuel Kenney, deceased. John Kenney and Mary Ann Kenney, the appellants, are husband and wife. Between the years 1870 and 1890 the property in dispute, except one tract, was deeded by third parties to Samuel Kenney. The one tract referred to was deeded to Jessie Kenney in 1895, after the death of her husband. ■ Samuel Kenney died on February 15, 1895, leaving his widow, Jessie Kenney, but no children, surviving him. He left a will by which he devised and bequeathed all his property to his wife, except certain specific legacies. This will was a nonintervention will, which designated the widow and Roger S. Greene as executors and trustees of the estate, and provided that, after the will had been admitted to probate, the property should be disposed of as seemed best to the trustees, and after the estate was finally settled the trustees should record a writing to that effect. The will recited among other things that, “my beloved wife, Jessie Kenney, knows of my habitual and provident care of my dear brother John and his wife . . . and also of my plans
After the death of Samuel Kenney in 1895, all of the property involved herein was in the actual or constructive possession of Jessie Kenney during her lifetime. After her death, the property was in possession of the executors and trustees of her estate, who managed and controlled the same and paid the taxes thereon down to the present time. The appellants apparently made no claim to the property, or any part thereof, until the 17th day of August, 1904, when the appellant John Kenney made and filed in the county auditor’s office of King county an affidavit stating, in substance, that in the year 1880 the affiant and his brother Samuel became partners in the mercantile business, affiant a silent partner therein;
Appellants now claim that the evidence failed to show either legal or equitable title of the land in the respondent. The record, as we read it, not only shows legal title in the respondent, but this fact was necessarily admitted by the appellants; especially in Samuel Kenney and Jessie Kenney during their lifetime. Whether there was proof that this title descended to the respondent depends upon whether the wills were properly received in evidence, and the conveyances made pursuant to the wills. Appellants claim that there was no foundation laid for the admission in evidence of copies of the wills of Samuel and Jessie Kenney, deceased, and that there was no proof made that either of these wills had been admitted to probate. Neither of these objections was made in the trial of the cause below. It was conceded that the copies offered were correct copies of the originals, and ob
Appellants claim that their evidence established an undivided one-half interest to the property in appellants. The only evidence tending to establish this fact is the affidavit of appellant John Kenney, above referred to, and the evidence of certain witnesses who stated that they had heard parts of conversations some twenty years before between John and his brother Samuel in reference to the purchase of certain real estate. These conversations, if correctly remembered and stated, were entirely insufficient to show that John had any interest in the estate. The evidence in regard thereto is not of sufficient importance to be discussed here. The affidavit was a self-serving declaration, and could not be received under the statute as evidence in appellants’ behalf. Bah Code, § 5991 (P. C. § 937).
It is claimed, however, by appellants that the court erred in rejecting the evidence of John Kenney as to conversations and transactions had with his brother Samuel prior to 1890,
After this amendment became a law in 1890, Samuel Kenney lived nearly five years. He and the appellant John Kenney were both in Seattle together during that time. If appellant had any interest in the property, as he now claims, ample opportunity was afforded to perpetuate the evidence of that fact. After Samuel Kenney’s death in 1895, and after his will was filed, and after his executors thereunder had taken possession of the property, the appellants necessarily knew that the executors were holding the property adversely to appellants, for the will recited: “I declare that all property owned by myself and by my beloved wife or either of us is community property of myself and my said wife.” Notwithstanding these facts, no claim appears to
The judgment is therefore affirmed.
Crow, Root, and Dunbar, JJ., concur.
Hadley and Fullerton, JJ., took no part.