McDonald v. Morley

EDMONDS, J.

Under a contract made by the appellant and Evelyn McDonald, his wife, before their divorce, they agreed to a disposition of the real property which is here in controversy. She subsequently died and the judgment appealed from upholds the contentions of the respondent, who is their daughter, that she succeeds to an undivided one-half interest in it under her mother’s will. The rights of the parties depend upon a provision of the property settlement agreement concerning joint tenancy.

The agreement recites that the property shall “be and remain in Joint Tenancy, as it now stands, until such property can be sold for a sum of not less than ten thousand dollars . . . [that amount] or such other sales price as the parties may agree upon ... to be equally divided between the parties hereto. It is further understood and agreed that . . . [Mrs. McDonald] shall pay for all repair work on said property that may be found necessary by . . . [her], and further that . . . [she] shall receive all income from this property until such time as same can be sold”. Other provisions of the contract are that Mrs. McDonald shall have the right to reside on the property until it is sold or she desires to reside elsewhere; that she may operate a school thereon and receive all income therefrom as her separate property; and that each of the parties shall pay one-half of the “interest on present loan”, taxes, insurance, and other carrying charges.

The parties also agreed that in the event of the death of either of them, then “his or her share and interest therein shall become the property of their daughter, Helen K. Morley”. A further provision is that for the protection of Mrs. Morley, “a suitable legal instrument shall be made by each of the parties”. This requirement was not complied with, nor was the property sold.

The appellant's action is against his daughter in her capacity as executrix of her mother’s will, of which she is the sole beneficiary, and as an individual, to quiet title to the property. She filed an answer denying the allegations of the complaint and claiming title' in herself. By a cross-com

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plaint, she alleged that the contract made by him and her mother entitled her to declaratory relief, specific performance of the provisions of the agreement by a conveyance of appellant’s interest in the property to her, and a determination by the court that he is now holding his interest in trust for her. A demurrer to the cross-complaint was sustained without leave to amend, but no appeal has been taken from that ruling.