In re Murphy's Estate

• Decision Date: 16 August 1937
• Docket Number: 26482.
• Court: Washington Supreme Court
• Parties: In re MURPHY'S ESTATE. v. MURPHY et al. YOUNG MEN'S CHRISTIAN ASS'N

71 P.2d 6

191 Wash. 180

In re MURPHY'S ESTATE.

YOUNG MEN'S CHRISTIAN ASS'N v. MURPHY et al.

No. 26482.

Supreme Court of Washington, En Banc.

August 16, 1937

Appeal from Superior Court, King County; James B. Kinne, Judge.

Proceedings in the matter of the estate of James B. Murphy, deceased wherein the Young Men's Christian Association, a corporation, filed a petition for a decree directing the executor to execute and deliver a deed to certain premises which was opposed by Esther Murphy, Katie Murphy, and Arthur Murphy, residuary legatees, and by the executor. Decree for the Young Men's Christian Association, and residuary legatees appeal.

Affirmed.

Poe Falknor, Falknor & Emory, of Seatle, and Van A. Neher, of Oakland, Cal., for appellants.

J Speed Smith and Henry Elliott, Jr., both of Seattle, for respondent.

HOLCOMB Justice.

By the terms of his will, which was executed January 6, 1933, James B. Murphy, who died September 18, 1934, bequeathed to the Young Men's Christian Association, of Seattle, his private library and $5,000 for educational work. After making other devises and bequests, the testator bequeathed the residue of his estate to seven nieces and nephews.

On April 30, 1930, more than four years prior to the date of the death of the testator and approximately thirty-two months prior to the execution of his last will and testament, Murphy entered into a contract, designated 'lease,' with the Young Men's Christian Association, under the terms of which he leased to the latter a tract of land near Bellevue. That tract was not specifically devised in the will, and, if the land constitutes a part of the estate of decedent, it will pass under the residuary clause.

Murphy had been especially interested in the work of the Young Men's Christian Association for about thirty years Before his death and remained a member of the board of directors, vice president of the association, and was connected with the boys' work department up to the time of his death. Apparently, it was by reason of decedent's interest in the boys' work of the association over such a period of years, and because of his desire to promote and foster the same, that he entered into this agreement, denominated a 'lease.' The association was put into immediate and exclusive possession of the leased premises upon the execution of this instrument. That consideration was exchanged for the lase is clear. The association went upon the land, made improvements, spent money, constructed buildings, installed equipment, and paid taxes.

The term of the lease is 'for the period of his [Murphy's] natural life and until his death, or until a guardian or trustee for any cause is appointed of his estate.'

Under the rental provision of the lease, the lessee was required and agreed to pay, during the term of the lease, all power, light, heat, water, oil, and other service charges, and all taxes and assessments levied against the leased premises or against any improvements then or subsequently placed upon the leased premises.

The lessee agreed to keep the premises in a good, safe, and secure condition, to conform to all sanitary and health regulations of the state, to indemnify the lessor against accidents occuring on the premises or adjacent roadways, to keep the premises safe for use as a camp ground for boys, to make all necessary repairs, and to reconstruct and rebuild such structures as might become damaged or destroyed or obsolete.

It was stipulated between the parties that all improvements placed upon the premises 'shall at once become a part of the freehold.'

Paragraph 6 of the lease imposes upon the lessee the duty of the care and preservation of the trees and shrubs upon the premises.

The lessee was obligated by paragraph 8 to construct, prior to June 15, 1930, an adequate sewage system, and adequate water distributing system, and, at least, seven summer sleeping cabins for boys.

Paragraph 9 requires the erection and completion, Before June 1, 1931, of a lodge building at a location to be agreed upon between the lessor and lessee, at a cost of not less than $5,000. There are further provisions in this paragraph for the preparation of a baseball ground, a tennis court, and a volley ball court on or Before a designated date.

While, under the terms of paragraph 14, the lessor was not required to place upon the grounds any equipment, structures, or applicance of any nature, he was privileged to do so, '* * * if he chooses with consent of the lessee and the same shall be deemed in the nature of a loan of such equipment, etc., is not properly cared for, the same may be removed at any time by him without notice, and this provision shall apply to personal property of every kind and nature which he may place thereon with consent of the lessee, but while such personal property is upon the grounds, the said lessee agrees to use the same solely for the purpose for which it was intended by lessor and shall be responsible for the care and preservation of same.'

Paragraphs 16 and 17 of the lease read:

'It is further covenanted and agreed that if the lessee shall become either insolvent or a bankrupt, or if a permanent receiver is appointed over lessee, or the said lessee fails to function as a going concern, this lease immediately terminates and ends without any notice of election or act or rescission on the part of the lessor; and it is further covenanted and agreed that if any portion of the said premises is taken for roadways, it shall not affect the validity or continuance of this lease and in such event the award for the land taken and damage to the remainder will go to and become the property of the lessor and the award for the injury to destruction of any building will go to the lessee herein; and that if the whole of said premises or so much thereof as shall render the remainder unfit for camp purposes, is taken by eminent domain, the awards for the land taken shall go to the lessor and the awards for injuries or taking of the buildings and improvements shall go to and become the property of lessee, and lessee will be permitted to salvage any buildings or structures upon any remaining portion of said premises not taken, and this lease shall thereupon terminate and end.'

'Lessee further covenants and agrees that it will not without the written consent of the lessor sublet the whole or any part of said premises, nor assign this lease, nor any interest therein, nor permit the title of the lessee to be transferred from the lessee involuntarily or by operation of law and will not, without such written consent, encumber the said lease-hold interest, or any part thereof, and that if consent is once given by the lessor to assign or encumber this lease-hold estate, as in this paragraph provided, the lessor shall not thereby be barred from afterwards refusing to consent to any further or other assignment or encumbrance. The lessor covenants and agrees that he will not encumber his interest in the fee of said premises and will not sell or encumber his ownership of this lease; and further covenants and agrees that if he shall sell or encumber his interest in the said premises or the said lease-hold, or in any property attached thereto or connected therewith, or if he becomes insolvent or bankrupt, or if a conveyance or encumbrance of the interest of the lessor in said premises or any property attached thereto or connected therewith, is made by operation of law, or if any conveyance, transfer or encumbrance thereof arises by virtue of the ownership of the said lessor either involuntarily or voluntarily, then in the event of anyone of the foregoing contingencies relating to the Bankruptcy encumbrance, or transfer of lessor's title, the title to said leased premises shall forthwith vest in and become absolute in the lessee, free of any and all claims, attempted transfers or encumbrances of the said lessor, his representatives or assigns, and a suit in equity may be immediately instituted by the said lessee to quiet its title to said lands and premises for, or on account of, the breach of this covenant by lessor.' (Italics ours.)

Paragraph 18 provides that any waiver of any of the terms or provisions of the lease must be in writing and can be proved only by a written instrument, and not by parol evidence; that any waiver of any one breach of the lease by the lessee shall not be deemed or construed as a waiver of any subsequent breach of the same or any other provision of the lease; that any failure on the part of the lessor to exercise any right under the lease, or to promptly declare a forfeiture, or to promptly take advantage of any breach of the terms of the lease, shall not be construed as a waiver of any such right or such terms or conditions, nor of any breach thereof; that delay on the part of the lessor in promptly claiming any breach of the lease is not to be construed as an extension of time for the performance of any of the conditions or covenants to be performed by the lessee; that indulgences granted by the lessor or forbearance in enforcing any of the provisions of the lease shall not estop the lessor from later claiming such right, '* * * nor shall it be used in construing the lease more favorably to the lessee, and it is covenanted and agreed that the lessor, although he has not exercised his right under this lease for a period of time, may at any time thereafter strictly and rigidly enforce the same, to all intents and purposes as if no leniency had been shown by him.'

By paragraph 19 the lessor and his agents were given the right at any time to enter upon the leased property for the purpose of ascertaining whether the lessee was performing its part of the agreement. It is further stipulated that the lessee will not contract...