Washington Escrow Co. v. McKinnon

• Decision Date: 01 May 1952
• Docket Number: No. 31901,31901
• Citation: 243 P.2d 1044,40 Wn.2d 432
• Parties: WASHINGTON ESCROW CO., Inc. et al. v. McKINNON et al.
• Court: Washington Supreme Court

Page 432

40 Wn.2d 432

243 P.2d 1044

WASHINGTON ESCROW CO., Inc. et al. v. McKINNON et al.

No. 31901.

Supreme Court of Washington, Department 1.

May 1, 1952.

Nelson R. Anderson, Seattle, for appellant.

Edwards E. Merges, Seattle for respondents.

WEAVER, Justice.

When a testator dies after having contracted to sell property previously devised, and the purchase money is paid and the deed withdrawn from escrow after the testator's death, is the devisee, under our statute, ultimately entitled to the purchase money held by the escrow holder, subject to administration of the estate?

November 23, 1948, Robert W. McKinnon executed his will devision specific property to Solita Blair. He named his son, Anthony, residuary legatee and devisee and appointed him executor.

In June, 1950, testator contracted to sell, and J. E. Mallonee agreed to buy, the property previously devised. The purchase money receipt and escrow instructions disclose the sale was subject to the seller furnishing evidence of insurable title. It was also subject to the purchaser being able to secure an F. H. A. mortgage upon the property for eighty-two hundred dollars, and payment of the balance of the purchase price. A warranty deed, the purchase money receipt, and the escrow instructions were deposited with the Washington Escrow Company.

Robert W. McKinnon died July 9, 1950. In August, 1950, the purchaser paid the balance of the purchase price to the escrow holder which then recorded the deed to the purchaser.

Conflicting demands having been made upon the escrow company for the funds in its possession, it commenced this action of interpleader, making Solita Blair and Anthony McKinnon, individually and as executor of his father's will, parties defendant. In her answer and cross-complaint, Solita Blair set up her interest in the fund as a devisee. Anthony McKinnon did likewise, both as an individual and as executor.

At the close of the testimony produced by defendant, Blair, the trial court granted a motion to dismiss her cross-complaint, with prejudice, and ordered that 'defendants, McKinnon [he appeared individually and as executor], are entitled to all monies paid into the court by the plaintiff * * *.' Solita Blair has appealed.

Respondent, McKinnon, urges that, because he is the executor of his father's will, he is, as executor, under the provisions of RCW 11.48.020, Rem.Rev.Stat. § 1464, entitled to possession of the fund during administration of the estate. With this we agree; but we do not agree, as respondent urges, that we cannot, in this proceeding, determine the ultimate disposition of the fund upon settlement of the estate. This is not the situation which confronted us in Re Bridge's Estate, Wash., 241 P.2d 439, where all necessary parties were not before the court.

In an interpleader action, RCW 4.08.180, Rem.Rev.Stat. § 201, authorizes a defendant to set up any claim he has to the fund, to the end that the superior right thereto shall prevail. This, appellant has done. All parties interested in the fund are before the court. To require appellant to litigate the question of her ultimate right to the fund at some future time in an action against the executor, would result in a multiplicity of suits. RCW 4.08.130, Rem.Rev.Stat. § 196, which reads:

'The court may determine any controversy between parties before it when that can be done without prejudice to the rights of others * * *.'

was expressly designed to prevent this. Appellant's claim to the fund, under the circumstances here, is not premature, and we will, therefore, determine title to the fund upon final settlement of the estate.

The question presented is the issue of revocation vel non.

RCW 11.12.060, Rem.Rev.Stat. § 1400, reads:

'A bond, covenant, or agreement made for a valuable consideration by a testator to convey any property, devised or bequeathed in any last will previously made, shall not be deemed a revocation of such previous devise or bequest [*], but such property shall pass by the devise or bequest, subject to the same remedies on the bond, covenant, or agreement, for specific performance or otherwise, against devisees or legatees, as might be had by law against the heirs of the testator or his next of kin, if the same had descended to them.' (Italics ours.)

The statute has had a long but quiet history in this state. It was first adopted by the territorial legislature in 1854, Laws of 1854, p. 314, § 9, exactly as above quoted, except for the insertion of the phrase 'either in law or equity' at the asterisk, the phrase being dropped in the Code of 1881, § 1323. It has been cited but once by this court, In re McNulta's Estate, 168 Wash. 397, 12 P.2d 389, but upon an issue not here presented.

This statute, as originally adopted by our legislature, appears in its identical form (with one minor exception) in II Rev.Stat. of New York, Ch. VI, Title I, Art. 3, § 45 (1836). The New York statute did not, however, contain the work 'last,' as italicized above. The statute also appeared in II Rev.Stat. of New York (4th ed.), Ch. VI, Title I, Art. 3, § 38, published in 1852. This was the code of New York current in 1854 when our territorial legislature adopted the statute.

When our legislature adopted it, it is presumed to have adopted the construction therefore placed upon the statute by the courts of New York. In re North River Logging Co., 15 Wash.2d 204, 130 P.2d 64.

The New York court first considered the statute in 1838 in the case of Knight v. Weatherwax, 7 Paige, N.Y., 182. The testatrix willed specific property. She sold her interest therein and died before any part of the purchase price had been paid. In holding that the devisees took under the will, the chancellor said:

'By the express provisions of the revised statutes, a bond, agreement or covenant to convey property devised or bequeathed by a previous will is not to be deemed a revocation of the will, either at law or in equity; but such property is to pass by the devise or bequest, subject to the right of the purchaser to a specific performance. (2 R.S. 64, § 45.) Whether the two lots were to be considered as real or personal estate after the making of the agreement to sell the same, the interest of the testatrix therein passes to the objects of her bounty, as specified in the first clause of her will, in the same manner as if that agreement had not been made; subject to the complainant's right to a specific performance of the contract, upon payment of the purchase money and interest, according to the terms of his agreement, for the benefit of whoever may be entitled to the same under that clause of the will.' (Italics ours.) Paige at page 184.

Title vested in Solita Blair immediately on testator's death, subject to burden of administration. RCW 11.04.250, Rem.Rev.Stat. § 1366.

Under like or similar statutes, courts have almost uniformly held that a devise is not revoked by a subsequent executory contract of sale or an agreement to sell, and that, if there is no conveyance prior to death, the devisee is entitled to the purchase money unpaid at the time of the testator's death. Powell's Distributees v. Powell's Legatees, 30 Ala. 697; Welsh v. Pounders, 36 Ala. 668; Slaughter v. Stephens, 81 Ala. 418, 2 So. 145; Scarbrough v. Scarbrough, 176 Ala. 141, 57 So. 820; In re Erskine's Estate, 84 Cal.App.2d 323, 190 P.2d 659; Chadwick v. Tatem, 9 Mont. 354, 23 P. 729; Nutzhorn v. Sittig, 34 Misc. 486, 70 N.Y.S. 287; Van Tassel v. Burger, 119 App.Div. 509, 104 N.Y.S. 273.

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