In re Ostlund's Estate

• Decision Date: 15 February 1910
• Citation: 106 P. 1116,57 Wash. 359
• Court: Washington Supreme Court
• Parties: In re OSTLUND'S ESTATE. v. SAGSTAD. PALMQUIST

106 P. 1116

57 Wash. 359

In re OSTLUND'S ESTATE.

PALMQUIST v. SAGSTAD.

Supreme Court of Washington

February 15, 1910

Department 2. Appeal from Superior Court, King County; A. W. Frater Judge.

Action by Swan P. Palmquist, as administrator with the will annexed of the estate of Mons J. Ostlund, deceased, against S.E Sagstad. Judgment for defendant, and plaintiff appeals. Reversed.

L. H. Wheeler, for appellant.

J. P Wall, for respondent.

PARKER J.

The appellant seeks to enforce payment of the balance of the purchase frice due from the respondent upon a sale of real property made in pursuance of an order of sale entered by the superior court. The issues involved were presented to the court in a somewhat informal manner in the probate proceeding. The controversy was, however, submitted by both parties upon the merits. The disposition of the matter by the trial court was based upon findings of fact and conclusions of law which disclose the issues involved and decided; and so far as necessary for us to notice, are, in substance, as follows: Prior to May 6, 1903, Mons J. Ostlund and Elsie Ostlund were husband and wife, residing in King county, and were the owners of lots 4 and 5, block 32, in Gilman Park King county, as their community property. On May 6, 1903, Elsie Ostlund died leaving a will, by which she devised all of her property to her husband. She left surviving her several children, all of whom were then over 21 years old, and none of whom were named or provided for in the will. On March 9, 1905, the will was duly admitted to probate in the superior court for King county, and Mons J. Ostlund was appointed and qualified as executor thereof. On June 5, 1906, upon the executor filing his account and petition for distribution, and upon due notice by publication as the law requires, a decree of final settlement and distribution was duly made and entered in the matter of the estate of Elsie Ostlund, whereby it was 'ardered, adjudged and decreed that the account be approved and settled, and that all of the property of said estate above described be and the same is hereby distributed to said Mons J. Ostlund as his sole and separate property, and that said estate be and hereby is closed and settled'--the lots here involved being described in the decree. On August 24, 1907, Mons J. Ostlund died in King county, leaving a will, and thereupon Swan P. Palmquist was by the superior court for King county duly appointed, and qualified, as administrator with the will annexed of the estate of Mons J. Ostlund. On January 25, 1909, an order was duly made and entered by the superior court directing the administrator to sell at private sale, for the purpose of paying the debts of the deceased and the expenses of administration, these lots, assuming they were a part of the estate of Mons J. Ostlund. Thereafter the administrator offered the lots for sale by giving due notice thereof, when the respondent in writing duly bid therefor at said administrator's sale the sum of $2,350, and paid as earnest money thereon the sum of $235. This was the highest and best bid, and was accepted by the administrator subject to confirmation by the court. Thereafter on March 11, 1909, the court made an order confirming the sale, and directing the administrator to execute and deliver to the respondent a deed for the property upon payment of the balance of the purchase price. Thereafter the administrator tendered to respondent a deed for the lots, and demanded payment of the balance of the purchase price, which was refused. In addition to these facts, the court found the following: 'That the said administrator of the said estate of Mons J. Ostlund, deceased, at the time of receiving the bid of said S.E. Sagstad for said lots, promised to furnish said S.E. Sagstad an abstract showing fee-simple title to said property, and that upon confirmation of said sale, said administrator would convey to the said S.

E. Sagstad an absolute fee-simple title to all of said lots, clear of incumbrances; that an abstract was not furnished until after the confirmation of said sale, and that said abstract disclosed that the only interest or title which the said deceased Mons J. Ostlund had or could have in and to the undivided half owned by his wife, Elsie Ostlund, deceased, was under and by virtue of decree of distribution under the will of said Elsie Ostlund, deceased, and that the children of said Elsie Ostlund were never cited or served with process or given any notice of decree of distribution made under said will save and except the notices required by the statute in cases of publication.' From these facts the court concluded 'that the said estate of Mons J. Ostlund does not own more than one-half of said lots, that the administrator of said estate is unable to convey said lots according to his contract to the said S.E. Sagstad, and that S.E. Sagstad is entitled to have returned to him his deposit on said sale, to wit, the sum of two hundred thirty-five ($235.00) dollars.' And rendered judgment as follows: 'Now, therefore, it is ordered, adjudged, and decreed that said S.E. Sagstad be not required to pay the balance of said purchase price, and that the said administrator of said estate be and hereby is ordered and directed to pay to the said S.E. Sagstad the sum of two hundred thirty-five ($235.00) dollars out of any moneys now in his hands or under his control and that the said S.E. Sagstad be and hereby is given judgment against Swan P. Palmquist, administrator of the estate of Mons J. Ostlund, deceased, for the sum of two hundred thirty-five ($235.00) dollars.' From which the adminstrator has appealed.

It is plain that the learned trial court rested its decision upon the assumption (1) that, by reasons of the representations made to the respondent by the administrator at the time of receiving the bid, the respondent was not required to consummate the purchase if the title of the deceased to the lots should appear defective upon the furnishing of the abstract; and (2) that such title did prove defective, because it rests upon the decree of distribution in the estate of Elsie Ostlund the deceased wife of Mons J. Ostlund; that such decree is not conclusive against the children of Elsie Ostlund, deceased, that her will was void as to them, and hence her husband, Mons J. Ostlund, became the owner of only a one-half interest in the lots. These are apparently the only questions presented to or decided by the learned trial court, and are the only questions affecting the merits discussed by the respective counsel in their briefs and arguments upon this appeal.

As against respondent's contention that he has a right to the return of...