Sebree v. Thompson

THE COURT.

This is an appeal by plaintiffs from a judgment in favor of defendants in an action to quiet title.

Joseph McKinney, who was a resident of San Joaquin County, state of California, died there on April 8, 1893, leaving a will, by the terms of which he left his real and personal property to Olive Jennings. He was of negro blood, born in slavery, and was a half-brother of the plaintiffs in this action. They had scarcely remembered him and had lost trace of him. The defendant, J. H. Kyle, who was an attorney practicing in Missouri, having become aware of the terms of McKinney’s will and of the conditions of the estate, looked up his half-brothers ; and after having imparted to them the information he possessed concerning the estate, they and he entered into a contract by the terms of which he was to contest the probate of the will, and to receive for his services a certain specified amount provided he was successful. At the same time they executed to him a power of attorney, which vested him with certain authority concerning sales and conveyances of property, and the commencement and settlement of lawsuits. The will of McKinney had in the mean time been admitted to probate, and Kyle, who had come to California immediately upon the execution of the contract and power of attorney, after a fruitless effort to effect a compromise with Olive Jennings, filed a petition for the revocation of the probate of the will. This proceeding resulted in a judgment revoking such probate. In due time an appeal was perfected to the supreme court by the proponent of the will, and the contestants, apparently fearing the result of the appeal, effected a compromise with Olive Jennings in 1896, under the terms of which the appeal was dismissed, and she received under the compromise a conveyance of certain lands belonging to the estate. As a part of the same transaction a certain other portion of the estate was conveyed to Kyle in settlement for the legal services he had rendered to plaintiffs. The conveyances thus made were made by Kyle as the attorney in fact for the plaintiffs. Kyle’s codefendants claim through him. It is the

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validity of the deed to Kyle that is questioned in this proceeding.

It has been held in two eases springing out of this transaction that Kyle was not authorized, under the express terms of the power of attorney, to make a conveyance of any of the lands of the estate.