Harvey v. Smith

MUSSELL, J.

This is a quiet title action brought by plaintiffs and appellants, the children by a former marriage of Otis C. Smith, deceased, against Padie Lou Smith, the widow of the decedent, and Thomas J. Fletcher, the executor of his will. Defendants in their answers alleged that the estate of Otis C. Smith and his heirs and devisees are the owners in fee simple of the property involved. The trial court rendered judgment that plaintiffs take nothing by their complaint and that the title to the property be quieted in the heirs and devisees of Otis C. Smith and Thomas J. Fletcher, as executor under his last will and testament.

The facts are set forth in an agreed statement on appeal.

[648]

Alice E. Smith died October

8,

1941, and at the time of her death owned the property here involved. She left surviving her Otis C. Smith, her husband, and four children, the plaintiffs and appellants in the present action.

It was stipulated that all parties hereto obtained all their right, title and interest in and to the subject property under the will of Alice E. Smith and by reason of the decree of distribution of her estate, Riverside Probate Number 8979. It was further stipulated that “Otis C. Smith died July 25, 1955; his estate is being probated in Riverside county, number 16710. Defendant Thomas J. Fletcher is the duly qualified and acting executor thereof. The executor included the subject property in the inventory of the estate.”

The last will and testament of Alice E. Smith, executed September 4, 1941, contained, in part, the following provisions :

“Third: I give and bequeath to my beloved husband, Otis Smith a life estate in Lots 1 and 2 Block 40 Whittier Subdivision and Lot 1 and the East 13.5 feet of Lot 2 Whittier Subdivision of Block 151, Hemet, Riverside County, California. Said Otis Smith shall be entitled to use and manage said property and to receive and keep for his own use all the rent and revenue therefrom, but he shall not be entitled to sell, mortgage or dispose of the same without the written consent of our children, to wit, Opha Francis Harvey, Dr. Georgiana Raymond, Nina Ronilia Graves, and Otis Robert Smith.