Murphy v. Farmers & Merchants' Bank of Los Angeles

CHIPMAN, C.

Action to quiet title. Plaintiff is one of ten children of William H. Winston, who died testate in May, 1886; in June, 1886, his surviving widow, Mary E. Winston, was appointed executrix; plaintiff is a devisee under the will of deceased and claims as such; she brings this action to quiet her title to an undivided one-eleventh interest in a certain tract of land in Los Angeles county, as property of the Winston estate. The judgment was that plaintiff is the owner in fee of an undivided one-eleventh interest in the property in question; that defendant has no right or interest in said one-eleventh interest; and that plaintiff’s interest “is subject to all lawful claims that may be made thereon in the course of the further administration of the estate of said William H. Winston which is now uncompleted.” The appeal is from this judgment and from the order denying defendant’s motion for a new trial.

The testator made certain specific bequests to plaintiff and other heirs at law, and provided that, after the legacies mentioned in the will were paid, the residue of the property should be equally divided between the testator’s wife and children, share and share alike. The court found the following facts: That plaintiff is the owner of an undivided one-eleventh interest in the land described in the complaint, and that defendant’s claim thereto is without right; that in November, 1891, the executrix filed her petition for an order authorizing her to mortgage the real estate in dispute. The petition showed that of the money coming into her hands all had been, disbursed by the executrix in payment of debts of the deceased, expenses of administration, payment of the legacies, and family allowance, and other costs and charges against said estate; that certain exempt personal property was set aside to the widow, and there remained belonging to the estate two old mules, two young mules and one colt, valued at $500. The petition showed accrued liabilities amounting to $21,052.38, and debts, expenses and charges to accrue, $28,247.70; total, $49,300.08. The petition was granted to the extent of authorizing the mortgage for $45,000, and such mortgage was executed to defendant bank on December 16, 1891, and on December 1, 1896, there

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was due and unpaid thereon $63,081.64. Foreclosure followed, and in due course, in June, 1898, a sheriff’s deed granting the premises to defendant as purchaser, and the land has been in defendant’s possession ever since claiming under this deed. No question arises as to the form of the proceedings to mortgage or the sale on foreclosure. There has been no final account or settlement of the estate or distribution, and the court found that there is no property of the estate with which to pay to plaintiff her legacy, and the executrix is insolvent and was serving without bonds. At the time this mortgage was executed the executrix owed the defendant in her individual capacity $33,347.03, which was made up of $24,000 and accrued interest, being money borrowed by her from defendant some years before the probate mortgage was executed, and she used this money to purchase the entire interest of six adult children in the estate; and the personal indebtedness of the executrix also included the further sum of $1,175 borrowed from defendant by her on personal account, for which she had given her note. The mortgage was executed by the executrix as such and by three of the adult heirs who had not sold their interest to Mrs. Winston, and by her individually, thus including ten-elevenths of the interests in the property. The court found that of the $45,000 borrowed by the mortgage the bank paid her only $7,329.97 and applied $4,323 in satisfaction of its own claim against the estate, which was justly due the bank, and credited .the balance, namely, $33,347.03, in payment of the personal debt above referred to, due it from the executrix; that the executrix paid out of this $7,329.97 the legacies of two brothers of plaintiff, amounting to $6,900, including three years’ interest. The evidence was that the $45,000 was passed to the credit of the executrix on the books of the bank on the day the mortgage was executed and delivered, and on the same day she gave the bank her checks to pay her individual indebtedness of $33,347.03, above stated, and the allowed claim of the defendant, $4,323, leaving a balance to her credit of $7,329.97.