Martin v. Preston

• Decision Date: 13 April 1908
• Citation: 94 P. 1087,49 Wash. 288
• Court: Washington Supreme Court
• Parties: MARTIN v. PRESTON et al.

94 P. 1087

49 Wash. 288

MARTIN v. PRESTON et al.

Supreme Court of Washington

April 13, 1908

Appeal from Superior Court, Whitman County; S. J. Chadwick, Judge.

Action by H. W. Martin against Mary Preston and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Lester S. Wilson, for appellants.

John L Sharpstein and T. P. & C. C. Gose, for respondent.

HADLEY, C.J.

This is an action to quiet title to real estate, described as lot 1 block 40, in the city of Pullman, Whitman county. The plaintiff alleges that he is the owner of the land in fee simple, and that the defendants claim some interest therein based upon the following facts: On September 24, 1901, and prior thereto, one Josephus M. Moore was the owner of an undivided third interest in the lot in question. On said date he died and left a will, by the terms of which he devised to his daughter Mary Louisa Preston, along with other property the following: 'The one-half of the proceeds of lots when sold of the undivided one-third interest of lots in Pullman unsold at my death.' He also devised to his minor son Amos Abbott Moore, along with other property, the following 'The one-half of the proceeds of lots when sold, of the undivided one-third of Pullman lots unsold at my death, his share of said proceeds to be invested to make a fund for him when he becomes of age.' The will also contained the following clause: 'I do hereby designate and appoint my brother Miles C. Moore the executor of this my last will and testament. I do hereby request and expressly provide and direct that no bond or other security be required of him, and so far as by law in any case can be done he be relieved from the supervision and control of all courts.' On the petition of the widow of the deceased the will was duly admitted to probate by the superior court of Walla Walla county, and Miles C. Moore was appointed executor without bond. An order was afterwards entered by the court that the estate was solvent, and should be settled without the intervention of the superior court of Walla Walla county or any other court. On the 14th day of September, 1905, Miles C. Moore was duly appointed guardian of the estate of Amos Abbott Moore, the minor above named, and he is still such guardian. Thereafter Miles C. Moore as executor undertook to sell and convey to the plaintiff the interest of the deceased in the lot, and he executed and delivered a deed purporting to convey the same, and received from plaintiff the purchase price therefor. The widow of the deceased, Eva H. Moore, and the two children aforesaid, were made defendants in this suit, together with Miles C. Moore, as guardian of the minor son. It is alleged that the widow and children assert that Miles C. Moore as executor was not authorized or empowered to sell or convey the interest of the deceased, but that he asserts that he was so authorized. Such being the view of the executor, who was also the general guardian of the minor, Lester S. Wilson was appointed guardian ad litem in this suit. In behalf of the minor he demurred to the complaint which set up the foregoing facts, and the other defendants made default. The demurrer was overruled, and, the guardian ad litem having refused to plead further, judgment was entered for the plaintiff quieting his title to the land as against all of the defendants. The monor, through the guardian adlitem, has appealed.

The question presented by the appeal is, do the foregoing facts which the demurrer admits entitle the respondent to a decree quieting his title? It is appellant's contention that under the terms of section 1, c. 105, p. 197, Laws 1895 (Pierce's Code, § 2718; Ballinger's Ann. Codes & St. § 4640), the title to the land vested immediately in appellant upon the death of the testator, subject only to the debts of the deceased, family allowance, expenses of administration, and any other charges for which the land is liable under existing laws. It is therefore urged that, with the title thus resting in the appellant, it was not within the power of the executor to transfer it. It is clear from the provision of the will above quoted that the testator intended it to be a nonintervention will, and that whatever powers were necessary to carry its terms into effect should be exercised by the executor without the direction of any court. If the testator intended for the executor to convey the land, then the latter had the power to convey it as it was done. We must search the will for the intention of the testator. If it is clear that the intention was for the title to vest in appellant under the statute, then his contention must prevail. We think from the words used by the testator it is manifest that such was not the intention. It will be remembered from the statement of facts in the beginning of this opinion that the will provides that one half of the proceeds of the interest in the Pullman lots remaining unsold at the testor's death shall 'when sold' belong to the dauthter. The same provision is made for the other half to go to the son, the appellant, with the added provision in his case that his share of the...