Bishop v. Locke

• Decision Date: 07 July 1916
• Docket Number: 13377.
• Citation: 158 P. 997,92 Wash. 90
• Court: Washington Supreme Court
• Parties: BISHOP v. LOCKE.

158 P. 997

92 Wash. 90

BISHOP v. LOCKE.

No. 13377.

Supreme Court of Washington

July 7, 1916

Department 2. Appeal from Superior Court, King County; Boyd J. Tallman Judge.

Proceedings for partition by D. R. Bishop against Florence Locke, as executrix, and others. From a judgment of dismissal as to the named defendant, plaintiff appeals. Affirmed.

Walter B. Fulton, of Seattle, for appellant.

Roy W McCarthy, of Seattle, for respondent.

PARKER J.

The plaintiff, D. R. Bishop, seeks partition of two lots in Seattle, making Florence Locke, as executrix of the last will of May J. Bishop, his deceased wife, and others claiming interest in the lots, defendants. The demurrer of the defendant Florence Locke, as executrix, to the complaint upon the ground, among others, that it does not state facts constituting a cause of action against her as executrix, was sustained by the superior court. The plaintiff electing to stand upon his complaint and not plead further, judgment of dismissal was rendered against him, from which he has appealed to this court.

The controlling facts as alleged in the complaint may be summarized as follows: On August 17, 1914, appellant and Mary J. Bishop were husband and wife and the owners of the lots here in controversy as their community property. On that day Mary J. Bishop died testate. 'The will of said Mary J Bishop is a nonintervention will, and names Florence Locke as the executrix thereof. * * * By the will of said Mary J.

Bishop she willed to the plaintiff, D. R. Bishop, a life interest in her undivided one-half of said property, with the remainder to the children of said plaintiff and deceased, share and share alike.' The will was duly admitted to probate in the Superior Court for King county, and Florence Locke, respondent, has ever since been the duly qualified and acting executrix thereof. This action was commenced on August 11, 1915, less than one year afer the death of Mary J. Bishop; consequently within the year prescribed by statute for the presentation of claims of creditors against estates and before the time for settlement, distribution, or partition of the estate would in the ordinary course of events arrive. The lots are incumbered by mortgages and local improvement assessments, and are alleged to be menaced by foreclosure proceedings. They are in the possession in common of appellant and the five children of appellant and his deceased wife, respondent Florence Locke being one of those children, all of whom are made defendants in the case. Following the allegations disclosing these facts it is alleged as follows:

'That a lack of harmony exists between plaintiff and his said children, making it impossible for them to manage said property in common or to subserve each other's interests by holding the same in common. * * *

'That said property, by reason of the facts herein set forth, is being wasted, and the interests of the respective parties therein will be wholly lost to them unless a partition of said property is had, setting apart and aside to the persons interested therein, their respective moieties, which can be done, and it is practicable to have done.

'That said named children refuse to co-operate with the plaintiff, D. R. Bishop, in the settlement of said mortgage indebtedness and said incumbrances; that plaintiff is anxious and able to pay and discharge his proportionate share of said incumbrances, but is prevented from doing so with the title to the property in its present state.'

This is followed by prayer for partition of the lots in controversy and for general equitable relief.

Counsel for appellant seem to proceed upon the theory that he is entitled to possession and to have set apart to him his share of the estate even against the executrix while the estate is in course of administration because it is being administered by the executrix under a nonintervention will, and that he may enforce such claimed right by an action of this nature on the equity side of the court. We are unable to see that an executrix's right of possession and control of the property of the...