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(230 P.) granted in part. The motion was made up-, strike was directed solely at the "Objections on the ground, among others, that the speci- and Statements Contesting the Final ACfied parts of appellant's objections were count." The order of the court was that, sham and irrelevant, scandalous, abusive, “there is hereby stricken from said 'Objecdisrespectful, and contemptuous. It should tions and Statements Contesting the Final suffice to say that all of the portions which Account of said Anne Bates Randall as Exthe record shows to have been stricken out ecutrix of the Will of said Decedent' those were wholly irrelevant to the question of the portions thereof.

*" There is no settlement of the final account of the ex- showing in the record that appellants offered ecutrix. Some portions thereof, in addition to any evidence to prove those allegations, or being irrelevant, were scandalous, abusive, that the court excluded any such evidence. disrespectful and contemptuous. The court It is incumbent upon appellants to show ermight have been justified in striking out the ror of the court below, and in the absence entire pleading because of the inclusion there- of any such showing we must assume eiin of such scandalous and irrelevant matter, ther that appellants offered no such evidence, but it did not do so. The portion so stricken or that if they did so offer it the same was out alleged that the testator was during his received and considered by the court. entire lifetime and at his death domiciled in Appellants seemingly feel that they have the state of Maine. It purported to enumer- been wronged because of the fact that the ate his next of kin and their relationship to trial court in construing the will herein him. It alleged the substance and effect of adopted the same construction which had the laws of Maine as to property rights be- been placed thereon by the Supreme Judicial tween husband and wife, as to heirship, suc- Court of the State of Maine, the place of cession, the law of wills, the probate there the testator's domicile. Philbrook v. Ran. of, and the effect of judgments in probate. dall, 114 Me. 397, 96 A. 725. Appellants asIt alleged some of the provisions of the will sert that: of the testator herein, and alleged that by "It is the settled law that, in every such reason thereof and of the provision of the case, no judgment or decree of the state of laws of Maine, Florence E. Philbrook be- Maine, construing or interpreting the will, or came the owner of all the estate and property | any part thereof, can lawfully be given or alleft by the said testator except two specific lowed any, even the least, effect.” legacies given by his said will. These alle

The cases cited by them do not support ttis gations might have been relevant in an an

assertion. The property involved in the answer or opposition to the petition for distri- cillary administration in California of this bution, but we are unable to conceive of any estate is all personal property. Mr. Wharton, relevancy thereof to the matter of the set in his Conflict of Laws (3d Ed.) p. 1357, § tlement of the account of the executrix, nor 599b, says: * * * * The courts of testator's have appellants pointed out any such rele domicile are ordinarily the proper tribunals vancy in their brief. The scandalous and to determine a contest over the construction abusive matter contained therein has no pos- or validity of a will relating to personal sible relevance even to the petition for dis- property, and their decisions are binding uptribution.

on the parties to the suit with respect to all [6] In addition to the objections to the personal property wherever located. * final account above referred to, appellants This general rule, subject to certain recog. filed in the court below a general demurrer to nized limitations, has been recognized and respondent's petition for distribution and al- followed by the courts of this state, notwithso an "Answer, Counterclaim, and Cross-standing the provisions of section 1376 of our Petition" thereto. In the latter document Civil Code. Estate of Apple, 66 Cal. 432, they allege:

436, 6 P. 7; Whitney y. Dodge, 105 Cal. 192, "These said defendants, for their denial of 196, 38 P. 636; Estate of Lathrop, 165 Cal. any right of said Anne Bates Randall to the 243, 247, 131 P. 752. We do not find it necwhole or any part of the property claimed by essary to determine whether, under the cirher by her said petition, and for stating their cumstances here obtaining, the decision of own title and right to all the said property, the court of Maine is to be regarded as bindhere adopt, and make a part hereof, section 2 of their said objections hereto annexed.”

ing upon the courts of this state in respect

of the construction of the will. If we assume Section 2 of said objections was the por- that the decision of that court is nowise bindtion thereof stricken out by order of the ing upon us, as to the property situate with. court. It seems to be appellants' theory that in this state, it follows that the question is the order striking out this portion of their | left open for our determination unhampered objections to the settlement of the account thereby. So assuming herein, we find our. had also the effect of striking it out from selves entirely satisfied with the reasoning their answer to the petition for distribution, and conclusion of that court in that decision, and thus deprived them of an opportunity to and we conclude, for the reasons there exoffer proof of those allegations. We find pressed without repeating them here, that nothing in the record indicating that it was the trial court correctly determined and deintended to have this effect. The motion to cided that the testator's intent as evidenced

by the terms of his will was to devise and R. Pearson; and ejectment by Nettie R. bequeath the entire residue of his estate to Pearson against William D. Shreeves and his widow.

wife. Judgments for defendant in first ac[7] The bill of exceptions herein contains tion, and for plaintiff in second action, and no portion of the evidence received, or the William D. Shreeves and wife appeal. Afevidence offered, and shows none of the rul- / firmed. ings of the court upon the admission of evi

Kennicott & Williams, of Los Angeles, dence. We must conclude, therefore, that

for appellants. the evidence fully sustains the findings, and

Henry M. Lee and Walter L. Mann, both that the court committed no error in receiv. of Los Angeles, for respondent. ing the same. We find no error in the record, and the decrees appealed from are therefore affirmed.

RICHARDS, J. These two cases were [8] It having come to the attention of the consolidated for the purposes of trial and court that Horace W. Philbrook, one of the have been presented together in the tran. appellants herein, has died since the sub- script and briefs upon appeal. In the first mission of this cause for decision, it is or- of these cases William D. Shreeves and dered that this judgment be filed nunc pro Grace Shreeves, his wife, brought suit tunc as of the date of submission, to wit, against Nettie R. Pearson for the specific October 7, 1924. 2 Cal. Juris. p. 974.

performance of an agreement for the pur

chase and sale of certain premises, which We concur: LAWLOR, J.; SHENK, J.; resulted in a judgment in favor of the de: WASTE, J.; LENNON, J.; SEAWELL, J.

fendant. In the second of these cases said Nettie R. Pearson sued William D. Shreeves

and wife in ejectment for the same premSHREEVES et ux. v. PEARSON.

ises, and recovered judgment in her favor

ousting said defendants from said premises. PEARSON V. SHREEVES et ux.

The same questions are involved in both (L. A. 7240.)

appeals. The facts are practically undis.

puted and are briefly these: (Supreme Court of California. Nov. 1, 1924.) In the early part of the year 1921, Nettie

R. Pearson listed with one H, B. Eshleman, 1. Escrows Cum 8(1) - When escrow holder agent of both parties stated.

a real estate broker doing business under When papers, moneys, or other articles are

the name of H. B. Eshleman Realty Comdelivered to escrow bolder to be held by him pany, certain real property constituting her in that capacity and to be distributed to re- home for sale. Thereafter said Eshleman, spective parties on performance of terms, he is, through one of this salesmen, showed the prior to performance of conditions, agent of property to the Shreeves, who on January both parties.

17, 1921, signed a so-called "sales deposit 2. Escrows On9When dual agency of escrow receipt,” which purported to be in duplicate,

holder changes to agency for each party stat. and one of which Nettie Pearson also signed.

ed. These duplicates, however, did not Whenever conditions attending escrow have agree in their wording, certain erasures and been so far performed that transaction which interlineations appearing in one copy which called escrow into being becomes complete, na

did not appear in the other. Two days later ture of dual agency of escrow holder changes to agency not for both but for each party in the Shreeves signed another “sales deposit respect to those things placed in escrow to receipt" which recites the receipt by H. B. which each has become entitled.

Eshleman Realty Company of $100 from W. 3. Escrows em 9–Escrow holder at time of D. Shreeves as deposit and part payment his defalcation held not agent for vendor

on account of the purchase of the property with respect to payment on price.

which said purchaser agreed to buy for the Requirements of escrow held not performed sum of $5,800, payable as follows: $2,400 po as to render escrow holder at time of his cash upon the execution and delivery of a defalcation agent for vendor with respect to good and sutficient deed conveying the proppayment by purchasers on price.

erty to W. D. Shreeves, together with a guar4. Escrows Oo9—Terms and conditions of es.

antee certificate of title of an acceptable crows must be strictly performed.

title company showing an unincumbered tiTerms and conditions of fulfillment of es- | tle, subject to a mortgage for $1.600 then crows must be strictly performed.

being placed on said property, and a trust In Bank,

deed for $1,800 securing the balance of the Appeal from Superior Court, Los Angeles sence of the agreement. If the price and

purchase price. Time was made the esCounty; Russ Avery, Judge.

terms were accepted within five days from Action for specific performance by Wil- date by the owner, the owner should have liam D. Shreeves and wife against Nettie a reasonable time to bring down the certifi

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(230 P.)
cate of title, any defect of the title to be The buyers' escrow instructions, which
removed by the owner within 30 days after were executed on the same day by Grace
the discovery of the same; and in the erent Shreeres, read as follows:
said defect could not be remored within
said time, then the money should be return. “H. B. Eshleman Realty Co., Escrow Dept.

"Los Angeles, January 19th, 1921.
ed to the purchaser upon demand. Nettie
R. Pearson, at foot of said document, accept- Co. $100 as evidenced by sales deposit receipt.

“I hare handed the H. B. Eshleman Realty
ed the abore price and terms, and agreed to and will band you the further sum of $1.400
deliver a good deed as above stated, and fur within 3 days from date hereof-all of which
ther agreed to pay the Realty Company $290 you are authorized to use in connection with
as their commission for negotiating the sale your escrow No. 4154 when you can secure
from the first money received on the pur. for me a title guarantee on the property and
chase price. After the foregoing sales de premises situate No. 2336 West 29th Place, in
posit receipt had been signed, the parties the city of Los Angeles, according to the legal
thereto went, on the same day, though not record title to said property is vested in William

description thereof which will show that the together, to the escrow department of H. D. Shreeves and Grace Shreeves, my wife, as B. Eshleman Realty Company, where cer- joint tenants, free from incumbrances except tain escrow instructions were executed. second half taxes for the fiscal year 1920–1921, Nettie R. Pearson's seller's escrow instruc. and a mortgage to be executed in favor of the tions read as follows:

party to be named for $2,500 to be placed-(full

amount of which is to go to seller) with in"Los Angeles, January 19th, 1921.

terest at 7 per cent. per annum from said date,
"H. B. Eshleman Realty Co., Escrow Dept.

payable quarterly at Los Angeles, and a trust
"I will hand you a deed executed by myself, deed in the usual form to be executed in favor
Nettie R. Pearson, a widow, to W. D. Shreeves, of Nettie R. Pearson for $1,800 securing a
or parties to be named, of the property and promissory note in like amount payable in
premises situate No. 2336 West 29th Place in monthly installments for $50 or more, including
the city of Los Angeles, according to the legal interest at 7 per cent. per annum from date of
description tbereof which you are authorized, February 4, 1921.
to the said buyers or their representatives up "Secure such fire insurance policies as may
on payment to you within 30 days from date be handed you for at least $ -; insurance
hereof, for account of myself the sum of twen-ion $2,500 now existing to be prorated to date
ty-four hundred dollars (payable by check of of recording deed. Additional insurance as nec-
the H. B. Eshleman Realty Co.), from which essary to be issued to protect $1,800 trust deed.
you may deduct your escrow charges $7.50 Possession to be delivered at close of escrow.
and for title guarantee and other costs below Interest upon $1,600 mortgage to be prorated
$, and from which you may also pay all to close of escrow. Interest on $1,800 trust
incumbrances on said property, except as spe- deed to be adjusted to close of escrow.
cifically mentioned below, and from which you "Obtain the note in my favor secured by said
may deduct the sales commission of the H. B. mortgage
Eshleman Realty Co. amounting to $290. trust deed

“As a part of the consideration for said deed, “Instruct the recorder to mail; Deed to
you will also procure note esecuted by the buy -; mortgage to

The guarantee
ers in favor of myself for $1,800, payable in when completed to be delivered to - If
monthly installments of $50 from date of Feb- you are unable to comply with the instructions
ruary 4, 1921, including interest from said within 30 days from this date, said money and
date at 7 per cent. per annum. Secured by a instruments shall thereafter be returned to me
trust deed, usual form, on said premises, which on my written demand, and in the absence of
by guarantee shall show, subject only to sec- such demand you will proceed to comply with
ond installment of taxes for the fiscal year these instructions as soon as possible there-
1920–1921, and to mortgage of $1.600 now of after. And time is declared to be of the es-
record to which said deed is made subject. I sence of these instructions. All disbursements
pay for recording said trust deed.

may be made by check of H. B. Eshleman Real-
"Hold check, will call. Possession to be giv. ty Co. I agree to pay the following charges be-
en at close of escrow. Existing insurance of fore the close of this escrow: For guarantee
$2.500 to be prórated to date of recording deed. vesting title in me on property I acquire $5.
New insurance to be issued in an amount suffi- For transfer fire insurance policy or mortgage
cient to protect me on the $1,800 trust deed. clause $ amount required. For recorder's
Interest on existing $1,600 mortgage to be fees as follows (estimated) deed, $1. For
prorated to close of escrow. Interest on $1,800 drawing trust deed, $2.50. Notary fee, $1.
trust deed to be adjusted at close of escrow. Revenue stamps on trust deed, $.36. Showing

For escrow, $7.50. For internal rev. trust deed in certificate of title, $2.50. Escrow,
enue stamps on deed, $4.50. Time is declared $7.50.”
to be of the essence of these instructions. If
you are unable to comply with these instruc A reading of these respective escrow in-
tions within the time specified, said instruments structions discloses that they vary in their
shall be returned to me on my written demand; terms in this important respect, that, while
but in the absence of such demand you will
proceed to comply with these instructions as

the seller's instructions call for a payment
soon as possible thereafter. Begin search of of $2,400 cash and a mortgage of $1,600
title at once, charges for which I will pay. For conformably with the sales deposit receipt,
drawing grant deed, $2.50. For notary fee, the buyers' escrow instructions state that

the Shreeves are to pay $1,400 cash and 230 P.-29

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that the property shall be subject to a mort. , the sum of $625 out of the money held in gage for $2,500, which is a material varia- escrow by the Eshleman Company. This betion from the sales deposit receipt, and which ing agreed to, the said escrow manager drew variation was explained by the manager up a memorandum stating that "in considerof the Eshleman escrow department in his ation of my being given possession of the testimony before the trial court which was property involved in escrow 4154, in advance uncontradicted and was as follows:

of the close of said escrow, we hereby di"I was informed that Mrs. Pearson, before rect and authorize the escrow department she had made a sale of this property, had ne- of the H. B. Eshleman Realty Company to gotiated a loan of $1,600, which was then in pay to Nettie R. Pearson the sum of $625 at escrow with the Title Insurance Company; this time on account of the purchase price and that the loan was to remain on the prop- of said property.” It was testified by both erty; that the Shreeves were to pay $2,400 in Mrs. Pearson and the escrow manager that cash-I mean a total of $4,000—they were to pay us $2,500 in cash, and I drew the instruc- they thought that Mr. and Mrs. Shreeves tion accordingly, and Mrs. Pearson signed the signed the carbon copy of this document and instructions. From that instruction I dictated kept the one signed. Thereupon and on the instruction for the buyers to sign, but they February 17, 1921, a check of the H. B. weren't present at that time. They came in ei- Eshleman Company was given to Mrs. Pearther later that day or the next day, and I learn

son by the manager of the H. B. Eshleman ed for the first time that the Shreeves didn't Company, who also delivered to her a letter have $2,400 in cash, they only had $1,500 in cash, and to close the deal it would be neces

to the Continental National Bank, directing sary for them to increase this $1,600 loan to it, upon the delivery of title certificate and $2,500, to get $900 additional. That is the rea the insurance policy called for in the escrow, son there is a correction in ink made in the to deliver to Mrs. Pearson the check for Shreeves' instructions that had already been $2,500, to be received from Gyle pursuant typewritten before Mrs. Shreeves came up; but to its escrow, payable to her instead of to when I learned that, I corrected it in ink; but the H. B. Eshleman Company as provided it appears I didn't correct it in Mrs. Pearson's

therein, This was evidently for the purinstructions."

pose of enabling her to pay off the $1,600 The escrow manager finally made an ar- mortgage upon which she was liable and to rangement with one Gyle (a friend of the retain the additional $900 to be paid her Shreeves) for the increase of the $1,600 loan pursuant to the arrangement made by the to $2,500, the additional $900 thus to be ob- | Shreeves with Gyle and acquiesced in by tained to be paid to Mrs. Pearson. The her. Mrs. Pearson deposited the check for arrangement with Gyle was not to be con- $625 in the Continental Bank and left the summated through the Eshleman escrow de- aforesaid letter with it. She had already partment, but through the escrow depart deposited with the Eshleman escrow de. ment of the Continental National Bank to partment her deed to the premises pursuant which Gyle's instructions stated that said to her escrow, and the manager of the Eshlebank should hand the $2,500 to the Eshle- man escrow department had, on February man Company upon the delivery to the bank | 16, 1921, transmitted said deed to the Title for him of a continuation title guarantee to Insurance & Trust Company of Los Angeles, the property showing title vested in the together with mortgage executed by the Shreeves, free of any incumbrance excepting Shreeves to Gyle for the $2,500 to be bora mortgage to be executed by the Shreeves rowed from him, and also the trust deed ex. to said Gyle to secure the payment of ecuted by the Shreeves to the Title Guarana promissory note for $2,500, and a trust tee & Trust Company as trustee to secure deed as a second lien for $1,800, together their note to Mrs. Pearson for the sum of with an insurance policy covering the dwell- $1,800, and requesting a continuation title ing house in an amount at least of $2,500. guarantee showing title to the property to Mrs. Pearson seems to have acquiesced in be thus vested in the Shreeves, subject to these variations from the terms of the sec- the said $2,500 mortgage to Gyle, the trust ond sales deposit receipt and of her own deed to secure the Pearson note for $1,800 escrow instructions. When the Gyle loan and the lien of certain taxes due or to behad thus been arranged for, and the Shreeves come due for the fiscal year 1920–21. The had paid over to Eshleman the additional $625 check of the H. B. Eshleman Company, $1,400 required to make up the first pay- which had been handed to Mrs. Pearson ment upon the property according to their on February 17, 1921, was returned to her escrow instructions, they desired to get by the bank unpaid. She made several inpossession of the premises, giving as their effectual attempts to collect it from H. B. reason that their rent was about to become Eshleman, who disappeared a few days due for the place where they were then liv- thereafter leaving a large shortage in his ing; and they accordingly had the manager accounts. Mrs. Pearson thereupon notified of the Eshleman escrow department per- the Title Insurance & Trust Company not suade Mrs. Pearson to deliver possession to to record her deed and was advised by it the Shreeves on condition that she was paid that “the papers will not be recorded; every


(230 P.) thing is at a standstill in the Eshleman pa- | upon payment by him to the escrow holder pers and will be until there is some adjust- of a sum of money to be by the latter dement made." It was stipulated at the trial livered to the grantor upon the production by that the Title Insurance & Trust Company the latter of a satisfactory certificate of had not furnished, and had in fact refused title, the escrow holder is, as to such deed to furnish, its certificate of title to the prop- and money, the agent of both parties until erty. In the meantime the Shreeves had such time as the said satisfactory certificate been let into possession of the property un- of title is produced, but he thereupon beder the special agreement above referred to, comes the agent of the purchaser as to and continued in such possession up to and such deed, and of the seller as to such after the trial of these cases. On March money. The cases above cited sustain this 4, 1921, Mrs. Pearson served a demand in view, as do also the cases of Bradbury y. vriting upon the Shreeves for the delivery Davenport, 120 Cal. 152, 52 P. 301; Marr v. to her of the possession of the premises in Rhodes, 131 Cal. 207, 63 P. 364: Whitney question, with which they refused to com v. Sherman, 178 Cal. 435, 173 P. 931. ply, but, on the contrary, on March 17, 1921, [3] The question thus presented for our commenced their action for specific perform- decision is as to whether the evidence in ance. On March 26, 1921, Mrs. Pearson these instant cases was sufficient to sustain commenced her action against them for pos- the finding of the trial court that the consession of the premises. She was succes- ditions of the escrow in question had not ful in both actions. The trial court made been so far performed as to render Eshleelaborate findings covering, in much detail, man, at the time of his defalcation, the every phase of this rather complex situation, agent of the seller and not of the buyers of but in the main finding the facts to be as these premises. If so, these judgments are above more briefly stated. The main attack correct. If not, they must be disapproved. which the appellants in each of their ap- An examination of the documents creating peals make upon these findings is upon that this escrow, assuming it to be such, would portion thereof wherein the trial court finds seem to clearly show that it was the intenthat, at and prior to the date of the issu- tion of the parties thereto that it was not ance by Eshleman of his worthless check to be closed, and the relation of the escrow and of his disappearance and defalcation holder to the respective parties thereby in respect to the remainder of the sum of changed until every condition expressed in $1.500 constituting the first payment made the terms of the instrument creating such

escrow had been fully performed. The by the Shreeves upon the purchase price of

phrase "close of the escrow" is expressly the property, the escrow had not been so far closed as to render said Eshleman the and repeatedly used in relation to the peragent of the seller in respect to these por- of said parties repectively performed.

formance of these conditions to be by each

In tions of the purchase price of said prop- the escrow document signed by Mrs. Pearerty. It is the contention of the appellants

son it is provided: that the said findings of the trial court to this effect are not supported by the evidence Existing insurance of $2,500 to be prorated to

“Possession to be given at close of escrow. in the case.

date of recording deed. New insurance to be [1, 2] It is conceded to be the correct rule issued in an amount sufficient to protect me on of law that when papers, moneys, or other the $1,800 trust deed. Interest on existing $1,articles are by the agreement of parties to 600 mortgage to be prorated to close of escrow. a transaction delivered to an escrow holder Interest on $1,800 trust deed to be adjusted at

Time is declared to be of the to be held by him in that capacity and to close of escroro. be distributed by him to the respective par- essence of these instructions. If you are unties or to other persons upon the perform- the time specified said instruments shall be re

able to comply with these instructions within ance of the terms of the escrow, he is, prior turned to me upon my written demand.” to the performance of the conditions of the escrow, the agent of both parties thereto The same language, with reference to the (Cannon v. Handley, 72 Cal. 133, 13 P. 315; same conditions, are repeated in the escrow McDonald v. Huff, 77 Cal. 279, 19 P. 499), instructions signed by Grace Shreeves, and and that it is equally sound law that, when it is further stated therein as follows: "I ever the conditions attending the escrow agree to pay the following charges before have been so far performed that the trans- the close of this escrow," enumerating a action which has called the escrow into be- series of items aggregating $19.85, and also ing becomes complete, the nature of this certain undetermined charges which could dual agency changes to an agency not for only be ascertainable when the transaction both but for each of the parties to said trans- was otherwise completed. It is thus made action in respect to those things placed in clear that the parties to these several docuescrow, to which each has thus become com- ments did not contemplate that the escrow pletely entitled. To apply a simple illustra- should be closed, or the relation of the estion, whenever a deed is deposited in escrow crow holder to the respective parties thereby the grantor to be delivered to the grantee to be changed until each and all of these con

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