Pickens v. Merriam

• Decision Date: 06 June 1921
• Docket Number: 3624.
• Citation: 274 F. 1
• Parties: PICKENS et al. v. MERRIAM et al. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

274 F. 1

PICKENS et al. v. MERRIAM et al. ^[1]

No. 3624.

United States Court of Appeals, Ninth Circuit.

June 6, 1921

Supplemental Denied August 1, 1921.

Supplemental Opinion.

Francis G. Burke, of Los Angeles, Cal., for appellants and intervener Charles F. Fensky.

J. H Merriam and Jay D. Rinehart, both of Pasadena, Cal., and Robert B. Murphey and Hunsaker, Britt & Cosgrove, all of Los Angeles, Cal., for appellees.

Suit by Louisa Pickens and another against J. H. Merriam and others to set aside quitclaim deeds. Charles F. Fensky and others intervene. Decree for defendants, and complainants appeal. Affirmed.

The complainants are sisters and two of the eight heirs at law of Ferdinand Fensky, deceased, aside from the widow. Fensky died intestate at San Pedro, Los Angeles county, Cal., August 7 1903, being a resident and inhabitant thereof at the time. He left property, both real and personal, in Shawnee county, Kan., and in Los Angeles and Orange counties, Cal. M. T. Campbell was appointed administrator of his estate in Kansas, and the widow, Jeanette Fensky, administratrix of his estate in California. The estate in Kansas, classified for convenience and clarity, consisted of, first, real property; second, a number of contracts executed by Fensky and wife for the sale of real property, by which the purchasers obligated themselves to pay the balance of the purchase money to Fensky; and, third, personal property, consisting in the main of notes and mortgages to secure their payment.

The estate in Kansas was finally settled June 6, 1905, and that in California April 11, 1905. Jeanette Fensky, the widow, later died testate as to the Kansas property, being at the time a resident of Los Angeles county, Cal. Letters of administration with the will annexed of the estate in California were issued to J. H. Merriam, one of the defendants, August 14, 1908. On or about October 9, 1908, M. T. Campbell was appointed in Kansas administrator with the will annexed. These estates were both settled in due time.

The heirs at law of Ferdinand Fensky, namely Louisa Pickens, Johanna Schutt, Ida Wendt, Augusta Krauss, and Hulda Richter, sisters, Frederick Fensky and Charles Fensky, brothers, and George Fensky, nephew, prior to the settlement of the estates of Ferdinand Fensky, each assigned by quitclaim deed all right, title, and interest in and to all the real and personal property, wherever located, of Ferdinand Fensky, to Jeanette Fensky, the widow, for the consideration of $1,000 each, except Frederick Fensky, to whom the consideration paid was $1,100. These assignments ranged in date from July to December, 1904, except Frederick's, which was executed in March, 1905.

In the settlement of the Ferdinand Fensky estates, both in Kansas and in California, the sales agreements or contracts for sale of real property, entered into prior to the death of Fensky, were treated as real property. As such they would descend to the widow under the Kansas statutes of descent.

It is claimed by complainants that Campbell, the administrator in Kansas, prior to March 30, 1905, remitted to Jeanette Fensky in cash and secured notes, being the proceeds of the assets of Fensky's estate, more than $30,000, and it is further asserted that, by reason of assignments of the heirs of Ferdinand Fensky of their title and interest in the estate to Mrs. Fensky, she was, upon the final account of her administration of the estate in California, awarded the entire estate as the only person entitled thereto; that she sold the real property in California, and realized therefrom more than $26,000; that with the money derived from these sources she purchased numerous parcels of real property in California; that prior to her decease, however, she conveyed, but without consideration, these parcels as designated in the bill of complaint, namely, items 1 and 6 to her sister, the defendant Alma J. Schmidt, items 2, 4, 9, 11, and 12 to her brother, the defendant Eugene Wellke, items 5, 7, and 8 to her sister, the defendant Amanda Katzung, item 3 to defendant Minnie S. Farnsworth, and item 10 to Corrine Loveland; that the defendant Don Ferguson claims to be the owner of item 3; and that after Jeanette Fensky's death the defendant J. H. Merriam became administrator of her estate, and administered a small amount of personal property only, which personalty was distributed to the heirs of Mrs. Fensky, except that $200 was paid to Laura M. Coughlin, which she claimed as a gift from deceased causa mortis.

The plaintiffs complain that the deeds from the heirs of Ferdinand Fensky, whereby they assigned and conveyed all their right, title, and interest in the Fensky estate to the widow, Jeanette Fensky, were procured by the misrepresentation, deceit, and fraud of M. T. Campbell, the administrator in Kansas, and the widow, whereby they were deceived and misled to their injury in that they were given to understand, and believed at the time and prior to the execution of such deeds, that the contracts for the sale of the real property entered into prior to Fensky's death, were real property, and were legally to be treated as such in the settlement of the estate, and as such descended to the widow, whereas their legal effect was to work an equitable conversion of the realty, and such contracts or agreements constituted personalty in the hands of the vendor, and as well in the hands of his estate, and as such would be distributed to the widow and heirs of deceased. It is further alleged that Campbell, the administrator, failed to account to the estate for certain personal property, namely, a note signed by W. C. Stein, and another by Simms, which notes, or their proceeds were turned over to the widow as her separate property.

It is also further alleged that the deeds made by Mrs. Fensky prior to her decease, to her brother and sisters, and to the defendants Farnsworth and Loveland, were without consideration, and were not delivered until after her death; that the defendant Merriam, well knowing that the real property described in the deeds did not pass thereby, yet nevertheless wholly omitted the property from his inventory of her estate, and settled the estate without accounting therefor; and, further, that he distributed the personalty to the heirs of Jeanette Fensky.

The prayer is that an account be taken of the property of Ferdinand Fensky, deceased, owned and possessed by him prior to his death; that the deeds of release and quitclaim executed by complainants to Jeanette Fensky be annulled; that an account be taken of the property and estate of Jeanette Fensky, and the sources from which the same were derived; that upon final hearing it be determined that all of the property owned by her at the time of her death is distributable among the heirs at law of Ferdinand Fensky; that it be determined that the deeds from Jeanette Fensky, under which the defendants, except Merriam, claim are invalid and void; that Merriam be required to account for the moneys distributed by him to the heirs of Mrs. Fensky; and for general relief.

The defendants Merriam, Wellke, Schmidt, and Farnsworth answered. Charles F. Fensky (a son of Charles Fensky, named in the complaint, now deceased), F. C. richter (a son of Hulda Richter, named in the complaint, now deceased) and George J. Fensky, one of the persons named in the complaint, were permitted to intervene, and they demand relief substantially as prayed in the original bill. The decree was for defendants, and the complainants appeal.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District Judge.

WOLVERTON District Judge (after stating the facts as above).

It is conceded that real property in Kansas descends to the widow, to the exclusion of the other heirs at law of the husband, and the personal property one-half to the widow and one-half to the heirs; that in California the widow is entitled to one-half of the separate property of the husband, both real and personal, but as to community property that the widow is entitled to three-fourths. It is further conceded that the real property of the decedent in Kansas was subject to distribution under the laws of Kansas, and that the personal property, whether in Kansas or California, and the real property in California were subject to distribution under the laws of descent in California.

The record shows by the inventory of the administrator that Fensky left certain real property, which is described, and which does not seem to have been appraised. This property, without question, descended to the widow.

By stipulation of counsel, it is agreed that prior to April 6, 1903, Ferdinand Fensky and wife executed contracts for sale of realty for about 29 tracts or parcels, and that the amount due on such contracts at the time of the death of Fensky was the sum of $22,965.75. The real estate in California was appraised at $6,200. Of this amount the homestead, valued at $3,000, was set aside to the widow in her own right, leaving for distribution $3,200.

The personalty in Kansas, consisting of notes secured by mortgages, was appraised at $16,630.50. To this should be added $4,297.14 money in hand, aggregating $20,927.64, found in the hands of the administrator, as per his inventory. On final settlement the administrator was directed to turn over to the widow all this property, less taxes and expenses of administration, which were $437.44. This does not include the administrator's charges for administering the estate, which were subsequently adjusted between the administrator and Mrs. Fensky at $1,500, by Mrs. Fensky canceling a note for that amount which she held against him.

The personal property in California was appraised at $500, to which should be added $100 as rent collected during...