Teynor v. Heible

• Decision Date: 01 July 1913
• Citation: 133 P. 1,74 Wash. 222
• Parties: TEYNOR et ux. v. HEIBLE et al.
• Court: Washington Supreme Court

133 P. 1

74 Wash. 222

TEYNOR et ux. v. HEIBLE et al.

Supreme Court of Washington

July 1, 1913

Department 2. Appeal from Superior Court, Adams County; O. R. Holcomb Judge.

Action by John Teynor and wife against Chloe Heible and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

Lovell & Davis, of Ritzville, for appellants.

Adams &amp Naef, of Ritzville, for respondents.

FULLERTON J.

This action was brought by the respondents against the appellants for the partition of certain real property. The land in question was acquired from the United States under the homestead laws by one Peter Teynor, who died without lineal heirs. The respondents are his father and mother. The appellant Chloe Heible was his wife at the time of his death. The other appellants claim an interest in the land through mortgages or contracts to convey executed by Chloe Heible. Peter Teynor entered the land in the year 1901. He was then a single man, never having theretofore been married. On January 1, 1903, he intermarried with the respondent Chloe Heible. He made final proof under the homestead laws on September 12, 1906, and thereafter a patent to the land from the United States was duly issued to him. He died intestate on October 30, 1906, without having parted with the title acquired by him under the homestead patent.

Letters of administration on Peter Teynor's estate were issued out of the superior court of the county in which the land is situated to John A. Willis, the father of the appellant Chloe Heible. The administrator performed the duties of his trust and on October 26, 1908, filed his final account with the estate, together with a petition asking for the distribution of the property thereof, praying that his account be settled and allowed, and that the estate be distributed to those lawfully entitled thereto. The court sitting in probate entertained the petition and made an order, dated as of the date on which the petition was filed, appointing November 16 1908, as the time for hearing the petition, further ordering that the clerk of the court give notice thereof by causing notices to be posted in three of the most public places in the county in which the land is situated 'at least two weeks before said day of settlement and hearing of petition, and publish notice thereof, according to law, for two weeks before said day of settlement and hearing upon the petition' in a certain designated newspaper. Proof by affidavit was made of the posting and publishing by the clerk, and on the day fixed for the hearing the court entered a decree in which it approved the final account and distributed the estate. That part of the decree relating to the proof of service of notice of the time of the hearing recited that it appeared 'to the court by affidavits on file herein that due and regular notice as required by law, and the order of this court, was given of the hearing hereof.' The order distributed the whole of the estate to the appellant Chloe Heible as the sole heir at law of Peter Teynor, deceased. In making the order of distribution the probate court proceeded on the theory that the real property was, when acquired from the United States, the community property of Peter Teynor and Chloe Teynor, his wife, and that it descended on the death of Peter Teynor, under the statutes of the state governing the descent and distribution of community real property, to the wife, since the entryman died without issue.

The court in the case now before us, on the same state of facts, held the property to be the separate property of Peter Teynor and to have descended on his death, under the statutes governing the distribution and descent of separate property, one-half to the father and mother of the deceased and one-half to his wife, Chloe Teynor, holding further that the decree of distribution entered in the administration proceedings was void because entered without sufficient notice. The first question suggested by the record relates, therefore, to the nature of the title acquired by Peter Teynor in virtue of his homestead entry. Did the land become on his acquisition of the title thereto his separate property, or did it become the community property of himself and his then wife, the respondent in this proceeding?

On the question our own cases are out of harmony. Indeed, they seem incapable of being reconciled, whether considered with relation to the facts upon which they are founded or with relation to the reasons by which they are thought to be sustained. The cases in which the question of the nature of the title acquired by a homestead entry from the United States is considered are the following: Philbrick v. Andrews, 8 Wash. 7, 35 P. 358; Bolton v. La Camas Water Power Co., 10 Wash. 246, 38 P. 1043; Kromer v. Friday, 10 Wash. 621, 39 P. 229, 32 L. R. A. 671; Forker v. Henry, 21 Wash. 235, 57 P. 811; In re Feas' Estate, 30 Wash. 51, 70 P. 270; Ahern v. Ahern, 31 Wash. 334, 71 P. 1023, 96 Am. St. Rep. 912; Towner v. Rodegeb, 33 Wash. 153, 74 P. 50, 99 Am. St. Rep. 936; James v. James, 35 Wash. 655, 77 P. 1082; Cox v. Tompkinson, 39 Wash. 70, 80 P. 1005; Hall v. Hall, 41 Wash. 186, 83 P. 108, 111 Am. St. Rep. 1016; Cunningham v. Krutz, 41 Wash. 190, 83 P. 109, 7 L. R. A. (N. S.) 967; Curry v. Wilson, 45 Wash. 19, 87 P. 1065; Rogers v. Minneapolis Threshing Machine Co., 48 Wash. 19, 92 P. 774, 95 P. 1014; Delacey v. Commercial Trust Co., 51 Wash. 542, 99 P. 574, 130 Am. St. Rep. 1112; Krieg v. Lewis, 56 Wash. 196, 105 P. 483, 26 L. R. A. (N. S.) 1117; Curry v. Wilson, 57 Wash. 509, 107 P. 367; Eckert v. Schmitt, 60 Wash. 23, 110 P. 635.

Grouping the cases according to their facts, and the decision of the court upon the facts, in the first group can be placed the cases of Philbrick v. Andrews and In re Feas' Estate. In these cases all that appeared in the record was that the land was occupied by the entryman and his wife at the time final proof was made and patent issued, and it was assumed, as if not subject to controversy, that the property was the community property of the husband and wife.

In the second group can be placed Forker v. Henry and Rogers v. Minneapolis Threshing Machine Co. In the first case the land was settled upon and entered as a homestead by a single woman who lived thereon for some four years and then married. Thereafter, while the marriage relation continued, she made final proof and was granted a patent. In Rogers v. Minneapolis Threshing Machine Co. the land was settled upon and entered by a married man living with his wife. Some two years later while living on the land the wife died leaving issue. A year and a half thereafter the entryman married a second time, and two years after the second marriage made final proofs and received a patent. In each of the cases the land was held to be the separate property of the entryman.

In the third group can be placed Kromer v. Friday, Ahern v. Ahern, James v. James, and Cox v. Tompkinson. In these cases the wife resided upon the land with her husband at the time of its entry and continued to reside thereon until her death, which occurred in each instance prior to making final proof and the receipt of patent, although occurring after the full period of residence required by the federal statute as preliminary to making final proof had expired. The property acquired was held to be community property.

In the fourth group can be placed Bolton v. La Camas Water Power Co. and Cunningham v. Krutz. In the first of these cases the wife resided on the land from the time of its entry by the husband until the residence period expired, but died before the...