Watkins v. French
| Decision Date | 02 June 1931 |
| Docket Number | 21000. |
| Citation | 299 P. 900,149 Okla. 205,1931 OK 315 |
| Parties | WATKINS et al. v. FRENCH. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Testator's devise to wife with full unrestricted power to sell property with gift over of remainder after her death, held to give wife fee estate not absolute as to her creditors (Comp St. 1921, §§ 8522-8525).
Under the provisions of sections 8522, 8523, 8524, and 8525, C. O S. 1921, a gift and devise by a testator to his wife of real property, "with full power to sell and dispose of the same in any manner and on any terms that seem to her best and with no restrictions, except as to such residue and remainder that may be retained by her at the time of her death, which residue and remainder so owned and retained by her at the time of her death, shall pass by the other provisions of this will," with a further provision giving, devising, and bequeathing the residue and remainder of the property "which may remain after the death of my wife" to his children, with the provision that the same was "in nowise to affect the right of my wife, Rebecca Watkins, to sell and use the same for her own support and maintenance, without interference or restrictions," gives to the wife an estate in fee, not absolute, in favor of a creditor of the wife, which, during her lifetime, may be taken by her creditor under a general execution on a general judgment against her to the exclusion of the remaindermen.
Confirmation of judicial sale and sheriff's deed take effect by relation as of day of sale; purchaser at judicial sale is entitled to rents and profits accruing between sale and date of confirmation and sheriff's deed.
The confirmation of a judicial sale of real estate, and the sheriff's deed executed in pursuance thereof, take effect by relation as of the day of the sale, and the purchaser is entitled to everything he would have been entitled to if the confirmation and conveyance had been contemporaneous with the sale, including the rents and profits accruing between the day of sale and the date of confirmation and conveyance.
Appeal from District Court, Garvin County; Charles C. Smith, Judge.
Action by Charley Watkins and others against W. E. French. From an adverse judgment, plaintiffs appeal.
Affirmed.
R. E. Bowling, of Pauls Valley, for plaintiffs in error.
Blanton, Osborn & Curtis, of Pauls Valley, for defendant in error.
The parties appear in this court in the same order in which they appeared in the trial court, and they will be hereinafter referred to as plaintiffs and defendant.
The plaintiffs brought an action in the district court of Garvin county against the defendant to quiet title to the real estate involved herein against the claim of the defendant.
The record shows that Robert Watkins and Fred Tinch, the son-in-law of Robert Watkins, operated a business under the trade-name of Watkins & Co. The partnership owned certain real estate which it mortgaged to the Farmers' Exchange Bank of Lindsay. Robert Watkins died, and the business was continued by Fred Tinch under the name of Watkins Broom Corn Company. Robert Watkins left as his sole heirs at law his wife, Rebecca Watkins, and his children, Charley Watkins, Inez Tinch, Grace Lauderdale, Jesse Watkins, and George Watkins. He left a will, which was admitted to probate, and Rebecca Watkins qualified as executrix. As such executrix she took charge of the property of Robert Watkins which consisted of a homestead and the real estate in controversy here. The property covered by the mortgage to the Farmers' Exchange Bank of Lindsay is not involved herein. George Watkins died, and any interest he had in the property involved in this action passed by inheritance to the plaintiffs. The indebtedness to the Farmers' Exchange Bank of Lindsay was not paid, and Rebecca Watkins, after the death of Robert Watkins, renewed the same by renewal note. The Farmers' Exchange Bank of Lindsay recovered a judgment on the renewal note. Thereafter that bank became insolvent and was taken over by the state bank commissioner. The real estate covered by the mortgage was sold at sheriff's sale. It did not bring sufficient to satisfy the judgment, and a general execution for the deficiency was issued and levied upon the property herein involved. That property was sold to the defendant herein under an order of sale on execution, and, over the objections of Rebecca Watkins, the sale was confirmed. Before a sheriff's deed was issued to the defendant herein for the property, Rebecca Watkins died. Thereafter an administrator of her estate was appointed and the administrator took charge of the property sold to the defendant; the defendant paid the purchase price of $2,001 on the 2d day of August, 1927; the sale was confirmed on the 14th day of August, 1927; Rebecca Watkins died on the 3d day of July, 1928; and sheriff's deed was issued to the defendant on January 7, 1929. From the record it appears that the delay in the issuance of the sheriff's deed was due to an appeal by the plaintiffs herein, which appeal was never perfected. When the defendant obtained his sheriff's deed he filed an application for writ of assistance. F. A. Tinch objected thereto, and, upon the overruling of his objections, he appealed to this court, and in an opinion of this court in Tinch et al. v. State ex rel. Bank Commissioner, 297 P. 251, the action of the trial court was affirmed. The proceeding in this case was instituted on the 4th day of January, 1929.
The issue presented by this record is whether Rebecca Watkins took only a life estate in the property involved in this action under the terms of the will of her husband, Robert Watkins, or whether she took such an interest under that will as could be subjected to a sale under a general execution on a judgment rendered against her. The plaintiffs claim that Rebecca Watkins took only a life estate in the property involved in this action under the terms of the will, and that their interest as remaindermen could not be subjected to her debts. If Rebecca Watkins took only such an interest, the plaintiffs must prevail for the reason that that interest ceased with her death which occurred prior to the judgment of the trial court in the instant case. The defendant claims that the interest acquired by Rebecca Watkins under the provisions of the will was absolute and to the exclusion of the plaintiffs. The trial court so found.
The plaintiffs present the errors assigned under one proposition, which is as follows: "The court erred in holding the power to sell given in the will was absolute and enlarged the estate into a fee subjecting the entire property to the general debts of the beneficiary." A determination of that contention requires a construction of two provisions of the will, which are as follows: "Second: I give and devise to my wife, Rebecca Watkins, all my property of every nature and kind whatsoever, both real and personal with full power to sell and dispose of the same in any manner and on any terms that seems to her best, and with no restrictions, except as to such residue and remainder as may be retained by her at the time of her death, which residue and remainder so owned or retained by her at the time of her death, shall pass by the other provisions of this will." And: "Fourth: I give, devise and bequeath to my children, Jesse J. Watkins, George Watkins, Charley Watkins, Inez Tinch and Grace Lauderdale, in equal shares, such residue and remainder of my property and estate which may remain after the death of my wife, Rebecca Watkins, in case she survives me, but this provision of this will, is in no wise to effect the right of my wife, Rebecca Watkins, to sell and use the same for her own support and maintenance, without interference or restrictions."
The applicable provisions of the statutes are sections 8522, 8523, 8524 and 8525, C. O. S. 1921, as follows:
An examination of the will discloses that Robert Watkins intended to give to Rebecca Watkins, not only a life estate, but the absolute power of disposition of the property. She was not only authorized "to sell and dispose of the same" for her own interest and maintenance, without interference or restriction, but she was given "full power to sell and dispose of the same in any manner and on any terms that seems to her best, and with no restrictions, except as to such residue and remainder as may be retained by her at the time of her death."
It is not necessary for us herein to determine the nature and full extent of the estate acquired by Rebecca Watkins under the terms of the will in question, and it is only necessary that we determine herein whether or...
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