Teeple v. Stanley

SCHOTTKY, J. pro tem. Plaintiff and appellant, surviving husband of Tymie P. Teeple, deceased, filed this action for reformation of a deed which conveyed certain real property to Tymie P. Teeple as her separate property, and by [582]said action sought to reform the deed so that it would convey the property to himself and Tymie P. Teeple as joint tenants. Defendant and respondent Henry IT. Stanley is a son of said deceased, and he and appellant are her only heirs at law. Appellant alleged that the consideration for said deed was the joint tenancy funds of him and his wife, but that by the mutual mistake of appellant and defendants the Posters, the grantors, and by the fraud of Tymie P. Teeple, the deed was erroneously made to Tymie P. Teeple as her separate property. The Posters, grantors named in the deed, were served but made no appearance and their default was entered.

Defendant and respondent denied the material allegations of the complaint and also set up the defense that Tymie P. Teeple died on September 2, 1946, that the matter of her estate was pending in the probate court, and that the superior court was without jurisdiction to determine the action.

Upon the calling of the case for trial respondent demurred to the taking of evidence for the reason alleged in his answer, and upon the further ground that appellant had theretofore been appointed and had qualified as administrator of the estate of Tymie P. Teeple and therefore had not the legal capacity to maintain this action. The court reserved its rulings upon the objection, and evidence was received subject thereto.

At the conclusion of the evidence respondent renewed his demurrer to the evidence and also made a motion to dismiss the action. The court thereafter filed an order sustaining the demurrer to the evidence and granting the motion to dismiss. This appeal is from such order.

Appellant contends that the J;rial court erred in dismissing the action. He argues that “the issue in the instant case does not primarily involve title to real property as between the estate of decedent and the administrator; that primarily it involves the equitable remedy of reformation; and that, therefore, the equity side of the court is properly clothed with jurisdiction to determine the cause.” Respondent in reply contends that in a ease where the administrator claims property in his own individual right against the estate, the superior court sitting in probate has incidental power to determine the title as between the representative and the estate.