In re Kuhn's Estate

• Decision Date: 16 February 1925
• Docket Number: 19075.
• Citation: 132 Wash. 678,233 P. 293
• Court: Washington Supreme Court
• Parties: In re KUHN'S ESTATE. v. KUHN et al. KUHN

233 P. 293

132 Wash. 678

In re KUHN'S ESTATE.

KUHN v. KUHN et al.

No. 19075.

Supreme Court of Washington

February 16, 1925

Department 2.

Appeal from Superior Court, Thurston County; Wright, Judge.

In the matter of the estate of Fred Kuhn, deceased. Petition by Jennie Kuhn, personally and as administratrix, for distribution of the estate on the final account, opposed by Helena Kuhn and others. From an order of distribution on the final account, petitioner appeals. Reversed, with directions.

Tolman C.J., dissenting.

Vance &amp Christensen, of Olympia, and P. C. Kibbe, of Tenino, for appellant.

Frank C. Owings, of Olympia, and T. F. Mentzer, of Tenino, for respondents.

HOLCOMB J.

This is an appeal from an order of distribution on the final account and petition for distribution of the administratrix of the estate of Fred Kuhn, deceased.

In 1902 the deceased and his then wife entered into a contract of purchase of real estate. He and his then wife lived upon the real estate until March 28, 1906, when his wife died, leaving the children who are heirs surviving her. The contract of purchase of the real estate in question provided for payments aggregating $1,200, of which $300 had been paid at the time of the death of the first Mrs. Kuhn, leaving a balance of $900 to be paid on the place. A deed to the real estate was secured August 16, 1906, five months after the death of the first Mrs. Kuhn, the property being deeded to Fred Kuhn. At the time of the death of the first Mrs. Kuhn there had been very little improvement made upon the real estate. Deceased and his children continued to live on the real estate until his death, and some of the children remained there until the trial of this case. On January 29, 1909, deceased married appellant, and they lived there until the time of the death of deceased, which occurred December 5, 1918. After the death of the first Mrs. Kuhn and his marriage to appellant deceased cleared some land, erected barns, put in lights and water, and built fencing; the cost of the improvements, not counting the labor of himself and family, aggregating $2,975. The real estate was sold during the administration for $7,000, this price including farm equipment which was personal property. After the death of Fred Kuhn, the administratrix carried on the farming operations for a year and a half. After the death of deceased, appellant worked at nursing and keeping sick people, at which she earned more than $400, and turned it into the estate. She asked for its return in the final account. This the trial court refused upon the ground that it was a claim for money loaned to the community, and was barred because no claim had been presented by her as provided by the statute.

The trial court allowed $200 as attorney's fees, $250 as administratrix's fees, $3,000 was set over to the widow out of the separate estate of deceased, and decided that $1,500 of the moneys on hand was community property. There remains $5,900 of the moneys of the estate to be distributed.

There is no doubt that the court erred in holding that the real estate was the community property of the deceased and the children of his first wife. We have so held in a long line of decisions announcing the principle that such a contract, while it remains executory and forfeitable, creates no interest in the land in the vendee, and that he has no legal or equitable title to, or interest in, the land until the contract has been fully performed. Churchill v. Ackerman, 22 Wash. 227, 60 P. 406; Younkman v. Hillman, 53 Wash. 661, 102 P. 773; Tieton Hotel Co. v. Manheim, 75 Wash. 641, 135 P. 658; Converse v. La Barge, 92 Wash. 282, 158 P. 958; Schaefer v. Gregory Co., 112 Wash. 414, 192 P. 968.

Respondent relies largely upon the...