No. 4581 | Cal. | Jul 1, 1875
At the time of his death the testator had neither a legal nor an equitable estate in the premises in controversy. Indeed, it does not appear that he ever owned these lots, or either of them, nor any part of Mission block 74, in which these lots are located. The complaint alleges that one Seaton held the legal title to the lots as security for a debt due to him from the testator. If the title of Seaton, held as a mere security, is to be denominated in this proceeding as the legal title, it is not alleged in the complaint that he derived it from the testator, and it may as readily be inferred that Seaton obtained it from a stranger as from the testator, especially in view of the language of the “articles of agreement” between the testator and Holmes, annexed to the complaint, in which agreement Holmes covenants ° that he will “purchase the title of said William H. Seaton,” for the benefit of the testator and himself. But, however this may be, it is apparent that the conveyance made by the testator a few days before his death to Moore, and the contract previously entered into with Holmes, left the testator no interest except an interest in the moneys for which the lands were to be sold, under the contract with Holmes. The precise sum to which the testator would be entitled, could only be ascertained upon an accounting and settlement, first had with Moore and with Holmes. This over-plus, should there be one, belongs to the estate of the testator, and the executor is entitled to an accounting concerning it. But the executor is not entitled to a reconveyance of these lots; certainly not, unless the conveyance to Moore and the contract with Holmes are first set aside. As observed already, the executor is entitled to an accounting with Moore and with Holmes' concerning the sums realized, or which might have been realized, by the sale of these lands, and to a decree against one or both of them for any balance appearing to be due, and in a proper case the balance ascertained to be due from Holmes and Moore, or some part of it, might, as between Mrs. Kevins and the estate of Moulton, be decreed to be a lien on these lots.