Korsstrom v. Barnes

• Decision Date: 17 September 1907
• Docket Number: 1,491.
• Citation: 156 F. 280
• Parties: KORSSTROM v. BARNES et al.
• Court: U.S. District Court — Western District of Washington

156 F. 280

KORSSTROM v. BARNES et al.

No. 1,491.

United States Circuit Court, W.D. Washington, Northern Division.

September 17, 1907

W. E Crews and Bard & Fenton, for plaintiff.

Guie &amp Guie, for defendant.

HANFORD District Judge.

The answering defendants, Victor Hugo Smith and wife, set up as a first affirmative defense an adverse claim of title to one of the distinct parcels of land claimed by the plaintiff by virtue of a deed given by executors named in the last will and testament of Charles A. White, deceased, and in support of their claim they also allege facts constituting laches on the part of the plaintiff, and that they are bona fide purchasers in good faith. The plaintiff's motion to strike attacks the equitable grounds of defense; that is, the allegations of plaintiff's laches and good faith of the defendants in acquiring the property by purchase from the executors. It is the opinion of the court that the validity of this defense must be affirmed or denied upon strictly legal grounds. The court is required to ascertain and declare the effect of the provisions of the will under which the executors acted in disposing of the property, and in doing so the legal rights of the parties will be determined. If the answering defendants hold the legal title to the property they claim, it is unnecessary for them to aid their legal title by proving facts proper to be considered only in a court of equity, and, if they have not acquired the legal title, their equitable grounds of defense are insufficient to defeat the plaintiff in this action. Therefore the motion to strike, so far as it relates to the matter included in the first affirmative defense, will be granted. The court overrules the demurrer to the first affirmative defense in this answer and sustains said demurrer to the second, third fourth, and fifth affirmative defenses.

My reasons for so ruling are as follows:

1. This is an action to recover the possession of real estate. The plaintiff in her complaint, without deraigning title, rests her case upon allegations of her absolute ownership, and right of possession, and wrongful ouster by the defendants. The answering defendants, conformably to the Code of this state, requiring defendants in such actions to set forth the nature of their title or claim, have pleaded in this affirmative defense that they are the owners and entitled to possession of a distinct parcel of the land included in the list of property which the plaintiff seeks to recover, that said tract of land was formerly owned by one Charles A. White, who died testate in the year 1898, and constituted a part of the estate of said decedent. The answer also pleads the last will and testament of said White, and alleges that it was duly admitted to probate, and established by a decree of the superior court for King county, and letters testamentary thereon were issued to the defendants Barnes and Stein, and that Smith purchased said tract from them in the year 1905, for the price of $17,000, and received from them a deed conveying the title to him, and that he is now the owner of said tract by virtue of said purchase and deed. The demurrer attacks the validity of the will, and the question to be decided is whether the succession to the decedent's title was diverted by the will.

Excepting formal parts, the will reads as follows:

'I, Charles A. White, of the city of Seattle, county of King, state of Washington, being of sound mind and memory, do hereby make, publish and declare this to be my last will and testament, that is to say:

'First. I direct that my body be embalmed and cremated as soon as possible after my death, at the nearest crematory existing at the time to the place of my decease.

'Second. I direct that my funeral expenses, the expenses of my last sickness, and cremation, and all debts owing by me, be paid as soon as possible after my decease and out of the first moneys that shall come to the hands of my Executors, hereinafter named, from any portion of my estate, real or personal.

'Third. All the rest, residue, or remainder of my estate, real, personal and mixed, wherever situated, I give and bequeath to my Executors Frank I. Blodgett and Henry W. Stein, or the survivor of them, in trust nevertheless and upon the following conditions, to-wit:

'That the said trustees, or the survivor of them, as speedily as consistent with the best interest of my estate, shall sell all the property belonging to my said estate, and, after paying the necessary and proper expenses of said trust, pay the proceeds of said sale to the trustees of the Theosophical Society at Adyar, Madras, India, or wherever the said Theosophical Society may be located, appointed or acting under a deed of trust, dated the 14th day of December, A.D. 1892, and duly enrolled.

'And I direct that the receipt of the said trustees, or the reputed trustees for the time being, shall be sufficient discharge for said legacy. It is my express will that the said legacy, to the said Theosophical Society in India be used for the purpose, as far as possible, in obtaining translations into English of the ancient Hieratic Scriptures, believed to exist in India and elsewhere, for the use of the Theosophical Society and its branches all over the world.

'Fourth. It is my will that, upon my death this my will shall be proved as such in the Superior Court of the County of King, State of Washington, and order of Probate thereof obtained, and that no further proceedings be had or taken in the matter of this my will nor in matter of my estate by said Superior Court, tribunal or officer whatever; and it is

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