« ΠροηγούμενηΣυνέχεια »
Fred Bansman and Bausman, Kelleher & Emory, for appellants. Thompson, Edsen & Humphries, for respondent.
fect, could not aid the allegations as to the authority conferred upon the executor and trustee by the terms of the will, for the reason that all of its terms might have been complied with, even although the execution of the note and mortgage was not authorized. To sustain such a claim would require too narrow a construction of the language used. When certain things have been done in apparent pursuance of a power, and, in connection with the allegation as to what has been done, it is stated that the power conferred has been fully carried out, it is only reasonable to infer therefrom that the doing of the thing alleged was one of the tuings necessary to a proper discharge of the power.
Having come to this conclusion as to the interpretation to be given the allegations of the complaint, there is no question of law left for consideration, as it is conceded by the appellants that if the will was ope which authorized the executor and trustee to proceed without the intervention of the court, and by its terms authorized the execution of a note and mortgage by the executor, and these facts are shown by allegations in the complaint, their demurrer was properly overruled. The judgment will be affirmed.
DUNBAR, SCOTT, ANDERS, and GORDUN, JJ., concur.
HOYT, C. J. Appellants stood upon their demurrers to the amended complaint, and judgment was rendered against them for want of answer; hence the only question presented upon their appeal is as to the sufficiency of the complaint. But two reasons are suggested why such complaint is insufficient. One is that there is no sufficient allegation contained therein to show that the will under which the executor was acting at the time he executed the note and mortgage to plaintiff was so conditioned as to authorize such executor to proceed with the administration of the estate, under the provisions 'thereof, without the intervention of the probate court. The allegation in the complaint was that the will authorized and directed said executor to administer upon said estate without the intervention, order, or advice of any cuurt, and to fully execute all its terms and provisions, and was sufficient for the purpose for which it was intended. It is not in the exact language of the statute, in that it does not state that the will contained a direction that no letters testamentary or of administration should be required; but the statement that the executor was to discharge all the provisions of the will without the intervention of any court, and without its order or advice, sufficiently shows that no such letters were required in the settlement of the estate.
The other reason suggested why the complaint is insufficient is that it does not appear therefrom that the making of the note and mortgage upon which ne action was founded was within the power of the executor and trustee under the will. The allegations in that respect are not as full and satisfactory as they should have been; but when it is stated in one part of the complaint that the person named as executor and trustee executed the note and mortgage, and in another part that he had executed and performed all the terms and conditions of said will, such allegations inust be taken together; and when so taken and construed in connection with the further fact, which appears from the complaint, that it was the intention of the testator that his estate should be administered without the aid of any court, it should be inferred therefrom that the execution of the note and mortgage was within the powers conferred by the will. This construction is sustained by the further allegation in the complaint that the action of the executor and trustee had been fully confirmed by the court, for the reason that he had fully discharged the trust imposed by the will.
It is claimed by appellants that the allegation that the estate had been administered in accordance with the provisions of the will, and the finding of the court to that ef
(11 Wash. 337) LA SELLE et al. v. WOOLERY, Sheriff, et al. (Supreme Court of Washington. March 7,
1895.) DEBT INCURRED IN ANOTIER STATE-ENFORCE
MEST AGAINST COMMUNITY PROPERTY.
Where a debt incurred by a husband in a sister state which does not recognize community property, would have been enforceable against property which from the nature of its acquisition would have been community property in this state, it is by comity enforceable in Washington against community property.
Appeal from superior court, King county; J. W. Langley, Judge.
Action by Marian E. La Selle and another against J. H. Woolery, sheriff, and another. There was a judgment for plaintiffs, and defendants appeal. Reversed.
Shank & Smith, for appellants. Reming. ton & Reynolds, for respondents.
HOYT, C. J. Appellant William F. Collins, in a suit brought in King county against the respondent William La Selle, duly recovered judgment. To this action and judgment the respondent Marian E. La Selle, wife of said William La Selle, was not a party. Execution issued on said judgment, which was placed in the hands of J. H. Woolery, sheriff of King county, the other appellant. He made a levy upon a piece of real estate situated in King county, of which the paper title was in the name of said Marian E. La Selle. This suit was then brought by the re
spondents, and thereby they sought to enjoin to the liability had no relation to any busithe sale of the property levied upon, and to ness of which the community would have hare it decreed that such property was not been entitled to the benefits. Is such presubject to the lien of the judgment. It was sumption confined to debts incurred in this conceded that the property, though standing state? There can be little reason for so holdin the name of the wife, Marian E. La Selle, ing, for while it is true that it will not be prewas the community property of herself and sumed that a debt incurred elsewhere could her husband, William La Selle. It was, be enforced against community property as therefore, under the rule established by nu. such, for the reason that in most of the other merous decisions of this court, subject to the states property of that kind is unknown, yet lien of the judgment against the husband it is but reasonable to presume that under alone, if the debt upon which sucb judgment the laws of any of the states of this Union was rendered was that of the community. It the business of the husband, though it may is equally well established by the adjudica- be in form for his own benefit, and relate tions of this court that such property was only to property of which he is the legal ownnot subject to the lien of such judgment if er, is in reality for the benefit of himself and the debt for which it was rendered was the his wife as a family, and that a liability inseparate debt of the husband. It must follow curred on account thereof is one which afthat the nature of the debt which was the fects the substantial interests of the wife as foundation of the judgment is the material well as the husband. This being so, there question to be determined upon this appeal. would seem to be good reason for holding that If it was that of the community, the sheriff the presumption as to the liability of comshould have been allowed to proceed to satis- munity property for the debts of the husfy the judgment by a sale of the property. If band alone should extend to those incurred it was the debt of the husband alone, the ap- outside of as well as within this state. If pellants were rightfully restrained from we should hold this to be the law, it would proceeding further against the property in probably make it unnecessary for us to disquestion. The foundation of this judgment cuss any other question raised by the briefs, was one against the husband alone, made since we are inclined to agree with the conand entered in the state of Wisconsin, and tention of the appellants that there is no the foundation of that one was a liability sufficient allegation in the complaint to overincurred by the husband to the appellant come the presumption in favor of the judgCollins in the prosecution of his business as ment. This question is, however, of such a contractor and builder, and proprietor of an important nature that it should only be a sash and door factory, and was for mate- decided in an action in which the rigbts of rials sold to him to be used in the construc- the parties can only be ascertained by its detion of houses and to supply his factory.
termination. We shall, therefore, make no At the time this liability was incurred, and further suggestion in relation thereto in this the judgment in Wisconsin rendered, the respondents were living together as hus- The substantial question presented by the band and wife in the state of Wisconsin. facts is as to the status of the debt which Afterwards they removed from said state, was the foundation of the judgment in Wisand from a time preceding the date of the consin in reference to the property of the husjudgment rendered in King county had been band, or the husband and wife, situated in living together as husband and wife in this that state. It appears from the statutes set state. The pleadings on the part of the re- out in the answer that in that state there is spective parties enter with much detail in- no such thing as community property, as unto the circumstances surrounding these derstood here, nor is there any such thing as transactions, and also set up such of the separate property of the husband, as defined statutes of Wisconsin as to the pleaders by our laws. The wife alone could own sepseemed necessary to determine the law of arate property, and the provisions in relathat state upon the question of the rights tion to its acquisition were substantially the of the husband and wife to property there same as in this state. All other property acquired, and upon the question of its lia- was that of the husband, whether it was acbility for debts contracted by the husband quired in such a manner as to make it, unalone.
der our laws, his separate property, or that Before entering upon a discussion of the of the community. And all of his property, rights of the respective parties growing out under the laws of that state, could be subof the law of Wisconsin in relation to the jected to the payment of debts incurred by liability of property for the debts of the him alone. It will be seen from these provi. husband, it is necessary to say a word as sions that a debt incurred by the husband to a preliminary question. It has been held could there be enforced against all of the that under the laws of this state a debt in- property acquired by the husband and wife curred by the husband alone is prima facie either before or after marriage, excepting a community debt, and for that reason is en- such as, under the laws of that state, would forceable against the community property, be the separate property of the wife. This unless it is made to appear by allegation and is substantially the result of the laws of this proof that the transaction which gave rise state as interpreted by former decisions of
this court. In our opinion, the comity which Appeal from superior court, Thurston coun. one state owes to another goes to the sub- ty; M. J. Gordon, Judge. stance rather than the form of things. If a Otto Stuth was convicted of disturbing a certain right is given in one state as to prop- religious society, and appeals. Affirmed. erty of a certain nature, comity would require
John C. Kleber, for appellant. Milo A. that those rights should be enforced in an
Root, Pros. Atty., for the State. other state as to property of the same nature, though it might be called by a different
SCOTT, J. The appellant was convicteá, In the state of Wisconsin, property name.
under section 95 of the Penal Code, i of dis. which was acquired by the joint labors of the husband and wife, though called the turbing a religious society. The information,
omitting the formal parts, is as follows: property of the husband, was subject to the payment of debts incurred by the husband in
"Comes now Milo A. Root, county and prose
cuting attorney for Thurston county, Washthe prosecution of business for the support of the family. Property acquired in the same
ington, and the court being in session and manner in this state belongs to the com
the grand jury not being in session, and
gives the court to understand and be informmunity, but is subject to a liability incurred by the husband alone in the prosecution of
ed that Otto Stuth is guilty of the offense business for the same object. Hence, under
of disturbing a religious society, and the the rule above suggested, comity requires
members thereof, when met together for pubthat a debt which, under the laws of that
lic worship, committed as follows, to wit: state, could be enforced against property
He, the said Otto Stuth, at Olympia, in which, from the nature of its acquisition,
Thurston county, Washington, on or about would be that of the community in this state,
the 13th day of February, 1894, in and near should be here enforced against property be
a room then occupied by a large number of longing to the community. There is noth
persons belonging to a religious Society ing in the policy of our legislation which will
known as the 'Salvation Army,' did use loud
and profane language, and did smoke a cigprevent the application of the rule above stated to the facts of this case. On the con
arette, and did refuse to leave said room when trary, the general policy of this state upon
requested so to do by the officer of said the question of the liability of property of society in charge, and did, by said lanthe community and of the respective spouses
guage and conduct, disturb said 'Salvation for debts incurred by the husband alone in
Army,' and the members thereof, they then the prosecution of any business is in substan
and there being met for public worship." tially the same line as that of the state of
It is contended that the information is inWisconsin. But, whether it is or not, so long
sufficient because it does not charge that as the rights of the parties are adjudicated
the acts were done willfully, and with intent under the laws of this state, its citizens have
to cause a disturbance. But, leaving out of no ground of complaint, whatever may be the
consideration the question as to whether this result as to those of other states. And since
was a necessary allegation in the informawhat we have said has been founded upon
tion, the statute not containing the word our statute, and the rights adjudicated there
"willful,” we think the point raised is not under have been in the light of the facts
well taken. The information charges that shown by the record, the respondents cannot
the appellant, in a room occupied by a complain. The judgment will be reversed,
large number of persons belonging to a reand the cause remanded, with instructions to
ligious society, then and there met for puboverrule the demurrer to the affirmative de
lic worship, did use loud and profane lanfenses pleaded in the amended answer.
guage, and did smoke a cigarette, and did re
fuse to leave said room when requested so to DUNBAR, SCOTT, and GORDON, JJ., con
We are of the opinion that this subcur.
stantially charges that the acts were done willfully, and with intent to create a dis
turbance. It would be unnecessary to use (11 Wash. 423)
the word "willful” if other words of the STATE v. STUTH.
same import are used. It is further urged (Supreme Court of Washington. March 16, that the statute in question is void, as relat1895.)
ing to the facts involved in this case, on the DISTURBING RELIGIOUS SOCIETY-SUFFICIENCY OF ground that it fails to define such crime; INFORMATION-VALIDITY OF STATUTE.
and decisions of the supreme court of In1. An information charging that defendant,
diana are cited to support this contention. in a room then being used for religious purposes, "did use loud and profane language, and did
But these cases were controlled by a constismoke a cigarette, and did refuse to leave the tutional provision, which reads as follows: room when requested so to do by the officer" in "Crimes and misdemeanors shall be defined, charge thereof, sufficiently shows that defendant's acts were willful.
and punishment therefor fixed by the stat2. P'en, Code. $ 95, providing that every person who shall disturb any religious society, when 1 Pen. Corle, $ 95, provides that every person meeting together in public worship, shall be fined, who shall disturb any religious society, when is not void, as failing to sufficiently define the meeting together in public worship, shall be erime.
utes of the state, and not otherwise." Our state of Minnesota, and was at all times hereconstitution has no such provision. We do inafter mentioned doing business in this state not think the statute is so indefinite as to at the city of Spokane. The object for render it void for uncertainty in this partic- which the association was incorporated was, ular. The word “disturb" has a well-known according to its charter, “to assist its memlegal significance. “ 'Disturbance' may be bers to buy real estate, and build, enlarge, defined to be any conduct which, being con- or repair houses, paying for the same in trary to the usages of the particular sort of weekly or monthly installments, and to acmeeting and class of persons assembled, in- cumulate funds from payments on stock terferes with its due progress and services, subscribed by its members, and to loan such or is annoying to the congregation, in whole funds to its members on approved real-esor in part.” 2 Bish. Cr. Law, $ 309. The tate security or the paid-up stock of its memwords “religious society," as used in the stat- bers." It appears that, under its charter ute, have their ordinary meaning, and would and the laws of Minnesota, it is empowered include all religious societies or congrega
to loan its funds only to its members. It tions met for public worship, without regard also appears that on or about July 28, 1892, to their being incorporated. “An ordinary
the respondents made and signed an appliSunday school, where the Bible and religious cation for membership in this association, precepts are taught, is a worshiping assem
and subscribed for 160 shares of its "runbly, within these statutes." Id. $ 305.
ning" or installment stock, and agreed to Affirmed.
abide by the terms and conditions of its
charter and by-laws. The association thereHOYT, C. J., and DUNBAR and ANDERS, upon issued and delivered its certificate for JJ., concur. GORDON, J., not sitting. said shares of stock to the respondents, who
thereby became members of said association.
About the time respondents made their ap(11 Wash. 277)
plication for membership and subscribed for BRUNDAGE et al. v. HOME SAVINGS &
the stock above mentioned, they executed LOAN ASS'N OF MINNEAPOLIS
and delivered to the association a written et al. (No. 1,383.)
application for a loan of $16,000, which they (Supreme Court of Washington. March 1, represented they desired for the purpose of 1895.)
paying off and discharging an incumbrance APPOIXTMENT OF RECEIVER-Possession OF MORTGAGEE-ESTOPPEL-AFFIDAVITS.
upon their property situated upou the north1. A mortgagor who, in consideration of an
west corner of Monroe street and College additional loan, places the mortgagee in posses
avenue, in the city of Spokane, and erecting sion, under an agreement that he may apply the thereon a one-story brick building, to cost rents as therein directed, cannot oust the mort
$5,000. The association advanced the sum of gagee and have a receiver appointed on mere allegations, not sustained by proof, of fraud and
$16,000 to the respondents, and also the furmismanagement, and that the property will be ther sum of $3,200, for the purpose aforewasted, in the absence of proof that the mortga- said, to secure which sums the respondents, gee is insolvent or that the debt has been paid.
on August 19, 1892, executed and delivered 2. The fact that the contract under which the mortga gee took possession was not formally
to the appellant association two mortgages signed by him after it was signed by the mortga- on the above-mentioned property,-one for gor will not deprive the mortgagee of his rights $16,000, and the other for $3,200,-both of thereunder, where he recorded the contract and took exclusive control of the premises thereun
which were recorded on the following day, der.
Instead of erecting the building mentioned 3. The mortgagor, having himself acted un- in their application for a loan to the appel der and received benefits from the contract, is
lant, the respondents entered upon the conestopped from denying its validity. 4. One applying for the appointment of a re
struction of a building of an entirely difceiver has no right, on the hearing of the mo- ferent character, and of much greater cost, tion, to read affidavits in its support which have
having two stories and a stone basement, not been served on the opposite party.
not contemplated in the original plan for the Appeal from superior court, Spokane coun
building. When the building was partially ty; Jesse Arthur, Judge.
erected, they found they had not sufficient Action by Jennie Brundage and Byron funds to complete it; that it was open and Brundage against the Home Savings & Loan
exposed to the elements, and was being Association of Minneapolis, Minn., and the
greatly damaged; and that liens to the ex. Northwestern & Pacific Hypotheek Bank,
tent of about $3,000 had been filed against praying for the appointment of a receiver
the property. Being so circumstanced, the of certain mortgaged property, for its resti
respondents urged the appellant to advance tution, and damages for withholding it, and
sufficient money to properly complete the for any other just and proper relief. From
building and offered to give additional sean order appointing a receiver, the loan as
curity for the payment thereof. After some sociation appeals. Reversed.
hesitation, the appellant agreed to advance Samuel R. Stern, for appellant.
the further sum of $7,500; and respondents,
to secure this sum, executed a third mortANDERS, J. The appellant is a corporation gage, covering the property upon which the organized and existing under the laws of the other two mortgages were given and other
property known as the “Brundage Block," and upon the same, and oust and eject plainon Post street, and also their homestead in tiffs therefrom, and ever since that day has Spokane. This mortgage, far as the willfully withheld and still withholds the Brundage block was concerned, was subject possession thereof, to plaintiffs' damage in to a first mortgage, held by the defendant the sum of $5,000; that the value of the bank, in the sum of $10,000. To further se- rents and profits of said land and premises cure the sums advanced and owing, the re- from the 31st day of March, 1893, and while spondents executed to appellant, simultane- the plaintiffs have been excluded therefrom, ously with this last-mentioned mortgage, an is $2,750; that on the 31st day of March, agreement reciting that it was executed to 1893, a pretended agreement was prepared secure the payment of the mortgages above by defendant, whereby it was sought to mentioned, and in order to secure this loan, have the plaintiffs deliver the possession of and providing that the rents and income the property heretofore described to the deshould be collected and received by the de- fendant; that said defendant falsely and fendant association, and applied to the re- fraudulently represented to the plaintiffs duction and payment of the mortgages above that the said agreement for possession of the mentioned, to the expense of caring for said property was in part security for the payproperty, and collecting and disbursing said ment of the said sum of $7,500, which the rents, and paying light and water rates, and defendant agreed to loan to the plaintiffs making repairs which the mortgagee might for the purpose of completing the construcdeem necessary to have made, to the pay- tion of a certain brick building in course of ment of any other liens existing against the erection on part of the said described propproperty which the appellant might deem ad- erty, and that the agreement was never sent visable to have paid; and, until all such to the defendant and never signed by it, and sums were paid, the appellant was to “take that no part of the $7,500 was ever paid to and hold the exclusive possession of all the the plaintiffs; that, upon procuring respondproperty herein mentioned”;
to rent any ents' signatures to the said agreement in the of said property, upon such terms and con- manner aforesaid, the defendant caused the ditions as seemed best to appellant; to make said pretended agreement to be recorded in leases for such times and upon such terms the office of the auditor of Spokane county, as appellant might deem best for its inter- without the signatures of any other or othests; to care for the said property in such ers of the parties to said pretended agreemanner as appellant migbt deem proper; to ment, and that defendant thereupon forcibly, employ such agents as it deemed proper, fraudulently and still falsely representing who were to have full power and authority, that said pretended agreement had been under the direction of appellant and at the fully executed by it, took possession of the expense of respondents, to do any and all said described premises, and still forcibly things in regard to the said property which and fraudulently withholds from the plainthe appellant might deem proper to do; to tiffs possession of the same; that, for a long apply the moneys received as above stated; time after the signing of said agreement by and to return to the plaintiffs any moneys the plaintiffs, they knew nothing of the remaining in its hands after the foregoing whereabouts of said agreement, nor of the application had been made; and at least fact that the same had not been signed by once in every six months to render a true the defendant association, and never since and itemized statement of all moneys re- they received knowledge of the nonexecuceived and disbursed. This agreement was tion of the said agreement have the plainduly acknowledged and properly recorded in tiffs recognized said paper as an agreement, the auditor's office of Spokane county. Before or consented to the possession so wrongfully the expiration of the six months within and fraudulently obtained by the defendant, which the appellant was, under the provi- as aforesaid, of the said described property; sions of the contract, to furnish an itemized that the defendant's management has been statement, the respondents instituted this ac- reckless and wasteful, and the building on tion praying for the appointment of a re- that account has never been completed, to ceiver, for the restitution and possession of the irreparable injury of the plaintiffs; that the property, for $5,000 damages for the because the income has been misappropriatwithilolding thereof, for $2,750, ralue of ed, and the building not completed, no inrents and profits, and for such other and come has been derived therefrom, and the further relief as to the court might seem defendant association permitted and caused just and proper.
a foreclosure of the mortgage held by the deThe complaint alleges, in substance, that fendant bank; that the local agent employed on the 31st day of March, 1893, the respond- by the defendant association was incompeents were the owners in fee and seised and tent and imprudent, and wrongfully applied possessed and entitled to the possession of the money paid by defendant to a contract the property described in the complaint; fraudulently entered into with one Dyer for that, while so seised and possessed and enti- a building different from the one proposed to tled to the possession of said land and prem- be erected by said plaintiffs; that the rents ises, the defendant did, on the day and year and profits received by said defendant were aforesaid, without right or title, enter into $300 per month; and that no accounting has