Lawrence v. Bellingham Bay & British Columbia Railroad

The opinion of the court was delivered by

The allegations of the complaint filed in this action show that the title under which plaintiff claims, in part, at least, is that of heir of her husband. In the case of Balch v. Smith, ante. p. 497 (decided by this court on July 6 last), we held that the usual method by which an heir was vested with such a perfect title to property, real or personal, of his ancestor, as would enable him to maintain an action therefor, was, by a decree of distribution of the probate court, pending, or at the close of, administration upon the estate of the ancestor. The rule therein announced is decisive of this case, for, while it is true that, in the case above cited, the court expressed an opinion that there might be exceptions to said rule, which, if pleaded and proved, would authorize the heir to maintain an action without administration, yet the allegations of this com*665plaint do not in any manner bring tlie case within any of such exceptions. As to the half of the estate which she claimed directly as the heir of her husband, them can be no doubt that the decision in the case above cited is conclusive. It might be argued, however, that as to the half of which she had been the owner all the time as a member of the community, such rule did not apply. Under our statute, the property of the community is administered with the estate of'that member of the community who is first deceased, and, this being so, we think the rule above referred to as to the necessity of administration, applies as strongly to her own half of the estate as to the half claimed as heir of her deceased husband. Beside, wedoubt whether one of the tenants in common can maintain an action for the specific performance of a contract for the conveyance of an entire estate without making all interested in the contract parties to the action. The authorities cited by the appellant to show that one tenant in common may alone maintain an action in relation to his interest, do not apply to a case of this kind. Hence, even although the plaintiff might be possessed of such a title to one-half of the estate as would authorize her to maintain an action, yet, as she was not so invested with title to the other half, her action could not be maintained. For these reasons, the holding of the court below that the complaint did not state facts sufficient to constitute a cause of action, was correct, and it is unnecessary for us to decide the other questions discussed in the briefs.

Judgment affirmed.

Anders, C. J., and Stiles, J., concur.

Dunbar and Scott, JJ., concur in the result.