Grant v. Murphy

McFarland, J. This is an appeal from an interlocutory decree in a suit for partition. The point made by the appellants is that the decree does not determine the interest of all the various parties in the premises, and that for this reason it is invalid and should be reversed.

The facts found by the court, and admitted by the parties, which are necessary to be noticed, are these: The premises consist of a city lot in San Francisco, upon which there is a large business building; and it is found by the court, and admitted, that it cannot be divided, but must be sold. On the third day of June, 1885, the owners of the premises were Adam Grant and Daniel T. Murphy, each owning an undivided half as tenant in common with the other. On that day the said Daniel T. Murphy died, leaving a will; and afterward his half of the property was distributed by the proper probate court, as follows: One-half thereof, or six twenty-fourths of the whole property, to his widow, Anna L. Murphy, and one twenty-fourth to each of his six children, Eugene K. L. Murphy, Daniel T. Murphy, Samuel J. Murphy, Mary Helen Murphy (now Mary Helen Dominguez), Frances Josephine Murphy, and Mary Margaret Isabella [429]Murphy. There was also another daughter, Anna Wolseley (formerly Anna Murphy), to whom nothing "was given by the will of said deceased. Daniel T. Murphy and Samuel J. Murphy each afterward conveyed his one twenty-fourth to the plaintiff herein, so that at the time of the decree the plaintiff was the owner of fourteen twenty-fourths of the premises. Afterward the widow, Anna L. Murphy, died, leaving a will by which it is claimed by some of the parties that she devised her six twenty-fourths to her three daughters, the aforesaid Mary Helen Dominguez, Frances Josephine, and Mary Margaret Isabella. This will was admitted to probate in the superior court of Alameda county, but it was afterward contested by the brothers and said Anna Wolseley, and the probate thereof was set aside by the court. But, upon appeal, the judgment of the said superior court was reversed in this court, and judgment ordered admitting the said will to probate. After the remittitur went down, however, another appeal was taken, which is still pending. The said three daughters of Anna L. Murphy, deceased, who claim under her will as aforesaid, set up in their answers that each of them, in addition to the ownership of one twenty-fourth part of the premises, is also entitled to an undivided one-third of the one-fourth of said lands held by their said mother. The defendant, Victor II. Metcalf, who is the administrator of the estate of said Anna L. Murphy, deceased, set up in his answer that the estate was the owner of the undivided one-fourth of said premises. The said Anna Wolseley, Daniel T. Murphy, and Samuel J. Murphy filed answers in which they denied the validity of the said will of their mother, Anna L. Murphy, and set up that each is entitled to an undivided one-seventh of the undivided one-fourth of said premises, which belonged to their mother at the time of her death.