Withington v. Collins

BARNARD, P. J. This is another appeal growing out of the affairs of the estate of Carl Withington. This action is one for partition, the plaintiff being the wife of Lysle Withington, the former executor of the Carl Withington estate.

So far as material here, the complaint alleged that the plaintiff is the owner of an undivided ll/60ths interest in certain real property in Kern County; that Norma Louise Withington, Harriet W. LeMay, Callie Belle Sweitzer and the estate of Carl Withington are the owners of the remaining interests in this property (subject to certain encumbrances about which there is no controversy); that Lysle Withington had been removed as executor of the Carl Withington estate; that on August 20, 1940, the plaintiff and her husband deeded their interest in the property to a title company in trust to secure their obligations to the defendant American Surety Company, the surety on the husband’s bond as executor of the Carl Withington estate, and to Prank A. Gazlay who had rendered them certain services as an attorney; that they received back from the title company a declaration of trust providing that, after payment of these obligations, any remainder of the proceeds from the interest conveyed should be paid to the plaintiff; and that the property could not be partitioned without prejudice to the owners. It was prayed that the property should be sold, that the interests of the respective parties should be determined, and that the proceeds should be divided and distributed in accordance with the respective interests of the parties.

Harriet W. LeMay, Callie Belle Sweitzer, Norma Withington and Norma Withington as administratrix of the estate of Carl Withington filed an answer to the complaint in which, among other things, they denied that the plaintiff is the owner of an interest in this property alleging, in this connection, that Lysle Withington had been appointed executor of the estate of Carl Withington; that the American Surety Company had furnished a bond for him as such executor in the sum of $250,000; that on August 25, 1939, a citation was issued requiring Lysle Withington to render an account as executor of that estate; that on July 19, 1939, Lysle Withing-ton had, without consideration, conveyed his interest in the property in question to the plaintiff; that this was done with full knowledge of both that Lysle Withington was short in his accounts with said estate and with the intention of avoiding any judgment that might be rendered against him on [112]account of said shortage; that on July 10, 1940, Lysle Withington ’s powers as executor were suspended and he was later removed as such executor; that on August 20, 1940, the American Surety Company and Frank A. Gazlay, knowing that Lysle Withington was short in his accounts as executor of the Carl Withington estate, had caused and procured the plaintiff to convey her interest in this property to this trust company as security for their claims and for the purpose of encumbering the property so as to make it unavailable to pay any judgment that might be rendered against Lysle Withington for such shortage; that at the hearing in the probate court, on the account proceedings, Lysle Withington had admitted that he owed the Carl Withington estate about $40,000 ; and that judgment in the account proceedings in the Withing-ton estate had not yet been entered.