Christofferson v. Pfennig

• Citation: 16 Wash. 491,48 P. 264
• Parties: CHRISTOFFERSON v. PFENNIG ET AL.
• Decision Date: 23 February 1897
• Court: Washington Supreme Court

48 P. 264

16 Wash. 491

CHRISTOFFERSON v. PFENNIG ET AL.

Supreme Court of Washington

February 23, 1897

Appeal from superior court, Pierce county; John C. Stallcup, Judge.

Action by O. H. Christofferson, as administrator of the estate of Julia Roholt, deceased, against William Pfennig and others. From a decree in favor of plaintiff, defendants appeal. Reversed.

Sharpstein & Blattner, for appellants.

Leuders & Leo, for respondent.

SCOTT, C.J.

This is an action to quiet title, the particular matter complained of being a sheriff's deed held by the appellants, which was issued to the purchaser under an execution sale of the lands in controversy, by virtue of a judgment rendered in a suit brought by the William Bergenthal Company against Hans J Roholt. Judgment was rendered for the plaintiff, whereupon this appeal was taken. Several technical motions were made by the respective parties, and were denied at the hearing. As no new points were presented therein for our consideration, they are not set forth specifically.

In November, 1894, one Julia Roholt, the wife of said Hans Roholt, died in Minnesota seised of the lands in question. She left a will, which was duly admitted to probate in Minnesota, and afterwards in Pierce county, this state. The provision of the will material to this controversy is as follows: "Fourth. My separate property in the state of Washington, consisting of the following described real estate, to wit, lots number one (1) and two (2), in block number twenty-five hundred and fifteen (2,515), in Reed's addition to Tacoma, late New Tacoma, according to the recorded plat thereof on file in the auditor's office in the county of Pierce, in said state, I give, devise, and bequeath as follows: First, I order and direct that my executors hereinafter named shall, as far as the means left for that purpose at their disposal may permit, improve the same by causing suitable building and other structures to be erected thereon, so as to make the same tenantable and productive; and, second, that they shall then lease or let the same for rent until such a period shall arrive that the youngest of my children herein named or the survivor of them shall arrive at the age of twenty-one years, and the rents and income from said property, so far as in the judgment of my said executors the same may not be needed for further improvements or taxes or expenses, shall belong to and be paid over, one-half to my husband aforesaid, and one-fourth to each of my two children herein named; but when the time shall arrive when the younger of my two children arrive at the age of twenty-one years, then the said property, being my separate property in the state of Washington, shall belong one undivided one-half to my husband, Hans J. Roholt, one undivided one-fourth to my son Louis Julius Roholt, and one undivided one-fourth to my son Clarence Alvin Roholt, their and each of their heirs and assigns, forever, in fee simple."

One of the questions to be determined is whether or not the title to one-half of the lands vested in the husband under this provision of the will. The lower court refused to find that such title vested in said Hans Roholt, and made no finding on that subject, and exception was duly taken. The respondent contends that no title vested in Hans Roholt under the decision in Balch v. Smith, 4 Wash. 497, 30 P. 648. While this case has never been formally overruled, and while it may have been cited in opinions subsequently rendered, in excepting cases therefrom, no case has arisen since where it has been given the effect contended for by the respondent here, and a different rule has since been established by the legislature (Laws 1895, p. 197). But that act does not affect this case. We are not disposed to follow the case of Balch v Smith to the extent of giving it the effect contended for by the respondent; for we are of the opinion that the title to one-half of said lands vested in the husband subject to the trust imposed by the will, even though it did not take effect for all purposes until the will was probated. When probated the title related back to the death of the testator.

It is contended by the appellants that, if the title vested in Hans Roholt, it was immaterial to the plaintiff what became of it, and consequently he could not maintain the action. The cases cited by the appellants upon this point are Murphy v. Sears, 11 Or. 127, 4 P. 471, and Allen v. Gilliland, 6 Lea, 521; and none have been cited by the respondent. We do not think that the two cases referred to, if followed, would require us to hold, under the facts of this case, that the plaintiff could not maintain an action, as the execution of the trust imposed by the will might be materially affected or interfered with by the proceedings sought to be set aside. For instance, the will provided, under the contingencies there mentioned, for the improvement of the property; and it might make a difference as to the desirability of improving it if the lands in question belonged to a stranger, and not to the husband of the deceased and the father of the children, who took the other half of the lands under the will, and thus the estate of the children therein might be injuriously affected. Also there might be a question as to whether the husband or the execution purchaser would be entitled to one-half of the surplus of the rents and income from such property, which would depend upon the validity of the proceedings whereby the appellants claimed title. It seems, therefore, that the plaintiff was a party in interest, and had a right to maintain the action, at least to the extent of attacking such proceedings and having them declared invalid, if the judgment, upon which the execution was issued and upon which the appellants' title is based, was void upon its face. As to whether the plaintiff could proceed beyond that in this action or at all is not now decided.

The respondent contends and the lower court found by its tenth finding of fact, that the court had no jurisdiction to render the judgment in question, and that it was void. This finding was excepted to by the appellants. The judgment referred to was rendered in the superior court of said Pierce...