Young Men's Christian Ass'n v. Murphy ( 1937 )

STEINERT, C.J., MILLARD, MAIN, and BLAKE, JJ., dissent. By the terms of his will, which was executed January 6, 1933, James B. Murphy, who died September 18, 1934, bequeathed to the Young Men's Christian Association, of Seattle, his private library and five thousand dollars for educational work. After making other devises and bequests, the testator bequeathed the residue of his estate to seven nieces and nephews.

On April 30, 1930, more than four years prior to the date of the death of the testator and approximately thirty-two months prior to the execution of his last will and testament, Murphy entered into a contract, designated "lease," with the Young Men's Christian Association, under the terms of which he leased to the latter a tract of land near Bellevue. That tract was not specifically devised in the will, and if the land constitutes a part of the estate of decedent, it will pass under the residuary clause.

Murphy had been especially interested in the work of the Young Men's Christian Association for about thirty years before his death and remained a member of the board of directors, vice-president of the association, and was connected with the boys' work department, up to the time of his death. Apparently, it was by reason of decedent's interest in the boys' work of the association over such a period of years, and because of his desire to promote and foster the same, that he entered into this agreement, denominated a lease. The association was put into immediate and exclusive possession of the leased premises upon the execution of this instrument. That consideration was exchanged for the lease, is clear. The association went upon the land, made improvements, spent money, constructed buildings, installed equipment, and paid taxes.

The term of the lease is "for the period of his [Murphy's] natural life and until his death, or until a guardian or trustee for any cause is appointed of his estate."

Under the rental provision of the lease, the lessee was required and agreed to pay, during the term of the lease, all power, light, heat, water, oil, and other service charges, and all taxes and assessments levied against the leased premises or against any improvements then or subsequently placed upon the leased premises.

The lessee agreed to keep the premises in a good, safe, and secure condition, to conform to all sanitary and health regulations of the state, to indemnify the lessor against accidents occurring on the premises or adjacent roadways, to keep the premises safe for use as a camp ground for boys, to make all necessary repairs, and to reconstruct and rebuild such structures as might become damaged or destroyed or obsolete.

It was stipulated between the parties that all improvements placed upon the premises "shall at once become a part of the freehold."

Paragraph 6 of the lease imposes upon the lessee the duty of the care and preservation of the trees and shrubs upon the premises.

The lessee was obligated by paragraph 8 to construct, prior to June 15, 1930, an adequate sewage system, an adequate water distributing system, and at least seven summer sleeping cabins for boys.

Paragraph 9 requires the erection and completion, before June 1, 1931, of a lodge building at a location to be agreed upon between the lessor and lessee, at a cost of not less than five thousand dollars. There are further provisions in this paragraph for the preparation of a baseball ground, a tennis court, and a volley ball court, on or before a designated date.

While, under the terms of paragraph 14, the lessor was not required to place upon the grounds any equipment, structures or appliances of any nature, he was privileged to do so,

". . . if he chooses with consent of the lessee and the same shall be deemed in the nature of a loan of such equipment, etc., is not properly cared for, the same may be removed at any time by him without notice, and this provision shall apply to personal property of every kind and nature which he may place thereon with consent of the lessee, but while such personal property is upon the grounds, the said lessee agrees to use the same solely for the purpose for which it was intended by lessor and shall be responsible for the care and preservation of same."

Paragraphs 16 and 17 of the lease read:

"It is further covenanted and agreed that if the lessee shall become either insolvent or a bankrupt, or if a permanent receiver is appointed over lessee, or the said lessee fails to function as a going concern, this lease immediately terminates and ends without any notice of election or act or rescission on the part of the lessor; and it is further covenanted and agreed that if any portion of the said premises is taken for roadways, it shall not affect the validity or continuance of this lease and in such event the award for the land taken and damage to the remainder will go to and become the property of the lessor and the award for the injury or destruction of any building will go to the lessee herein; and that if the whole of said premises or so much thereof as shall render the remainder unfit for camp purposes, is taken by eminent domain, the awards for the land taken shall go to the lessor and the awards for injuries or taking of the buildings and improvements shall go to and become the property of lessee, and lessee will be permitted to salvage any buildings or structures upon any remaining portion of said premises not taken, and this lease shall thereupon terminate and end."

"Lessee further covenants and agrees that it will not without the written consent of the lessor sublet the whole or any part of said premises, nor assign this lease, nor any interest therein,nor permit the title of the lessee to be transferred from thelessee involuntarily or by operation of law and will not, without such written consent, encumber the said lease-hold interest, or any part thereof, and that if consent is once given by the lessor to assign or encumber this lease-hold estate, as in this paragraph provided, the lessor shall not thereby be barred from afterwards refusing to consent to any further or other assignment or encumbrance. The lessor covenants and agrees that he will not encumber his interest in the fee of said premises and will not sell or encumber his ownership of this lease; and further covenants and agrees that if he shall sell or encumber his interest in the said premises or the said lease-hold, or in any property attached thereto or connected therewith, or if he becomes insolvent or bankrupt, or if a conveyance or encumbrance of the interest of the lessor in said premises or any property attached thereto or connected therewith, is made by operation of law, or if any conveyance, transfer or encumbrance thereof arises by virtue of the ownership of the said lessor either involuntarily or voluntarily, then in the event of anyone of the foregoing contingencies relating to the Bankruptcy encumbrance, or transfer of lessor's title, the title to said leased premises shall forthwith vest in and become absolute in the lessee, free of any and all claims, attempted transfers or encumbrances of the said lessor, his representatives or assigns, and a suit in equity may be immediately instituted by the said lessee to quiet its title to said lands and premises for, or on account of, the breach of this covenant by lessor." (Italics ours.)

Paragraph 18 provides that any waiver of any of the terms or provisions of the lease must be in writing and can be proved only by a written instrument and not by parol evidence; that any waiver of any one breach of the lease by the lessee shall not be deemed or construed as a waiver of any subsequent breach of the same or any other provision of the lease; that any failure on the part of the lessor to exercise any right under the lease, or to promptly declare a forfeiture, or to promptly take advantage of any breach of the terms of the lease, shall not be construed as a waiver of any such right or such terms or conditions, nor of any breach thereof; that delay on the part of the lessor in promptly claiming any breach of the lease is not to be construed as an extension of time for the performance of any of the conditions or covenants to be performed by the lessee; that indulgences granted by the lessor or forbearance in enforcing any of the provisions of the lease shall not estop the lessor from later claiming such right,

". . . nor shall it be used in construing the lease more favorably to the lessee, and it is covenanted and agreed that the lessor, although he has not exercised his right under this lease for a period of time, may at any time thereafter strictly and rigidly enforce the same, to all intents and purposes as if no leniency had been shown by him."

By paragraph 19, the lessor and his agents were given the right at any time to enter upon the leased property for the purpose of ascertaining whether the lessee was performing its part of the agreement. It is further stipulated that the lessee will not contract any debt for labor or material which may become a lien against the interest of the lessor in the premises, and that the lessee will and can not contract or create any mortgage lien against the interest of the lessor in the leased property, or against the lessor's interest in the improvements placed upon the leased premises.

Paragraphs 23 and 24 read:

"Time is the essence of this lease in reference to all matters to be done and performed by the said lessee and especially in reference to the preservation of the trees, and the said grounds, and this lease shall be strictly construed against the lessee and if the lessee shall fail to fully keep and perform any of the covenants or provisions herein contained, and to be performed by it, then the lessor may, with or without process of law, re-enter the said premises, take possession thereof and remove all persons representing the lessee therefrom and remove personal property belonging to the lessee and store the same in some public warehouse at the expense of the lessee and this lease shall be fully terminated and ended, and the said lessee can never thereafter assert any right or privilege hereunder, lessee waives all notice of default required by statute, or otherwise."

"It is further covenanted and agreed that if the said lessee shall fully perform the terms of this lease and the said lease is in good standing at the time of the death, or the appointment of a guardian or trustee, of the lessor's estate, then in that event the said lands and premises shall become the property of the said lessee and if the said lessee is in possession at the time of the death of the said lessor or at the time of the appointment of a guardian or a trustee, it shall be conclusive proof against the lessor, his representatives and his estate that the lease is in good standing. It is understood on behalf of the lessor that the services to be rendered and the work to be performed, and the expenditures to be made by the said lessee in the fulfillment of the provisions in this lease, is a sufficient consideration for the passing of the title of the said lands and premises to the lessee upon the death of the lessor, or sooner upon the appointment of a guardian or a trustee, and said transfer and passing shall not be regarded as a gift or devise, but for a good and sufficient consideration, and the executors or administrators or personal representatives of said lessor are hereby authorized, directed and empowered upon his death, or sooner upon the appointment by his deed or otherwise of a guardian or a trustee to manage his estate, to execute any and all conveyances which may be necessary and proper to vest in the said lessee."

The association went into possession of the property in question at the time of the execution of the lease and has been continuously in possession at all times since that date. It is noteworthy that Murphy did not reserve a life estate.

The association filed a petition in the probate proceeding, in which petition it prayed for a decree directing the executor to execute and deliver to it a deed to the premises in question. The demurrers of the executor and several of the residuary legatees to that petition were overruled. Thereafter, answers were filed in behalf of the residuary legatees and in behalf of the executor. As an affirmative defense, the residuary legatees pleaded numerous violations of the terms of the lease. Before the introduction of any evidence, the affirmative defense was stricken by the trial court, on the motion of the petitioner. Trial to the court resulted in a decree requiring the executor to make the conveyance of the property to the petitioner. Three of the residuary legatees have appealed from that decree.

Appellants set forth two assignments of error: First, the court erred in striking the affirmative defense contained in the answer of residuary legatees; second, the court erred in entering its decree directing the conveyance of the premises to respondent by the executor, and particularly erred in holding that paragraph 24 of the lease was not testamentary in character.

Counsel for appellants urge that, since paragraph 24 of the contract between the decedent and respondent is testamentary in character, and as the contract was not executed with the formality required for a valid will, the provisions thereof are not enforcible.

[1] With respect to the affirmative defense asserted, we are not unmindful of the covenants and provisions in the lease to be performed by the lessee or of paragraph 23 of the lease. Respondent admits that, by reason of economic conditions, it was unable to comply strictly, if at all, with some of the covenants mentioned in the lease. Murphy was fully apprised of this fact during his lifetime and could have elected to terminate the lease, but the fact is that he did not do so. Forfeiture clauses must always be strictly construed against the grantor, and nothing will be held to cause a forfeiture unless it plainly appears to be such. To justify a forfeiture for the violation of the condition, the violation must be wilful and substantial.Eastern Outfitting Co. v. Manheim, 59 Wash. 428, 110 P. 23.

Any argument as to whether respondent did everything required of it and whether its performance was satisfactory under the terms of the lease during Murphy's lifetime is foreclosed by reason of the fact that paragraph 24 of the so-called lease expressly provides that possession at the time of the death of the lessor shall be conclusive proof against the lessor, his representatives, and his estate that the lease is in good standing.

[2] At the outset, it is necessary to determine what the nature of this instrument, designated "a lease," is. Whether an instrument is testamentary in character, depends upon the intention of the maker. Rennie v.Washington Trust Co., 140 Wash. 472, 249 P. 992; 2 Tiffany Real Property (2d ed.), § 467, 1809-10.

"In the extreme types, there is little chance of confusion between wills and contracts. A will is dispositive; a contract promissory. A will is gratuitous; while a contract, if not under seal, requires consideration. If the instrument provides for performance at the death of the promisor, there is greater chance for confusion; and, if the consideration is insufficient, the distinction becomes of the highest importance. If the instrument creates a right in the promisee before the death of the testator, the instrument is a contract, or, at least, a defective attempt to make a contract rather than a will." 1 Page on Wills (2d ed.), § 70, p. 120.

"In determining whether an instrument is a contract or a will, the dominant purpose of the maker as manifested therein must control. So the question whether any given writing is a will or a contract must be determined by the character of its contents, rather than by its title or any formal words with which it may begin or conclude; but words which do not change the legal effect of the instrument may nevertheless be significant in determining its character and the intention with which it was made." 68 C.J. 619, § 238.

"Whether or not an instrument is testamentary in character depends upon the intention of the maker. It is the animus testandi that makes an instrument a will. When the animus testandi is established, the character of the instrument is fixed and it is a will if the other requirements as to form and execution have been complied with. In the absence of a testamentary intent, there can be no will." 28 R.C.L. 59, § 3.

There is no doubt that it was the intention of Murphy to convey the land described in the instrument to the association upon compliance with the consideration therein stated. Murphy's intention, as expressed and reflected in the entire instrument, was to withhold the vesting of the fee title in the association until after his death. Paragraph 24 expressly provides that this transfer shall not be regarded as a gift or devise.

". . . said transfer and passing shall not be regarded as a gift or devise, but for a good and sufficient consideration, and the executors or administrators or personal representatives of said lessor are hereby authorized, directed and empowered upon his death, or sooner upon the appointment by his deed or otherwise of a guardian or a trustee to manage his estate, to execute any and all conveyances which may be necessary and proper to vest in the said lessee."

While conceding that the court should make every effort to give effect to decedent's intention, the question presented is whether or not the court is precluded from giving effect to that intent.

"The fact that an instrument of doubtful character is invalid if regarded as a conveyance while valid if regarded as a will, has been referred to as a ground for regarding it as a will, and conversely, the fact that an instrument is invalid if regarded as a will while valid if regarded as a conveyance has been considered a ground for regarding it as a conveyance. This view is based partly upon the policy of the courts to give to an instrument a legal operation wherever possible, and partly upon the consideration that the maker of the instrument must have intended it to operate in the mode in which he rendered it capable of operating." 2 Tiffany Real Property (2d ed.), 1813-14, § 467; Rood on Wills (2d ed.), 59, § 75.

The essential distinction between a contractual obligation and a testamentary disposition is that the contract contemplates performance, in part at least, during the lifetime and vests some quantum of present interest in the other party.

"So, although an agreement involves or effectuates a disposition of property belonging to a party thereto, it is valid as a contract, and is not a will, where it contemplates performance, in part at least, during his lifetime, or vests apresent interest in the other party." 68 C.J. 618, § 238. (Italics ours.)

The general tenor of paragraph 17 shows the instrument contemplates more than a lease. By the terms and conditions in the instrument, the lessor expressly restricted and limited his own title, and by reason of these limitations created in the association a correspondent accretion of title coincident with the execution of the lease, thus vesting the right to require a conveyance of the fee title after Murphy's death. Viewing the provisions of the lease as a whole, we feel that this instrument conveyed some present interest. It is conceded that, if no present interest in the property was conveyed, this constitutes a testamentary disposition and the statutes applicable to the same would need be complied with.

The lessor bound the association not to, without his consent, "permit the title of the lessee to be transferred from the lessee." The lessor also covenanted and agreed that "he will not encumber his interest in the fee of said premises and will not sell or encumber his ownership of this lease."

It was further provided that, in the event the lessor sells, transfers, or encumbers, his interest in this leasehold, either voluntarily or involuntarily, then "the title to the said leased premises shall forthwith vest in and become absolute in the lessee."

The instrument designated "a lease" was both a lease and an executory contract for the sale of realty for a stipulated consideration, conveying a present interest to the association and so long as a Young Men's Christian Association existed to promote the worthy objectives for which it was designed. Manifestly, it was the grantor's intention that, upon compliance with the terms of the lease during his lifetime, or if the association were in possession at the time of his decease, a sufficient consideration had been paid, and the association was thereupon to have title in fee conveyed to it by the executor after Murphy's decease.

[3] It is incumbent upon the executor to carry out binding contracts made by decedent in his lifetime. It was proper for the executor to apply to the court for instructions, so that his good faith might be unimpeachable. 11B Cal. Jur. 198, § 789.

"It has been said that one of the duties of the executor or administrator is to carry out, subject to the directions of the court, binding contracts made by the decedent in his lifetime. If he does not complete contracts binding on the decedent, the estate becomes liable for damages for the breach." 2 Bancroft's Probate Practice (1928) 967, § 528.

"Where a contract is executory, and the representative can fairly and sufficiently perform all that the deceased could have performed, he may do so and enforce the contract." 11B Cal. Jur. 193, § 795.

"It is a fundamental principle of law that contractual obligations of a decedent which do not terminate at his death are binding on his executors and administrators in their representative capacity. . . . Under normal circumstances not only is it within the power of an executor or administrator to complete a contract made by his decedent, but it is part of his duty to carry out such contracts." 11 R.C.L. 163, § 173.

See, also, Annotations, 58 A.L.R. 437.

"The rule as stated by 24 Corpus Juris, 53, 54, and which is approved by the weight of judicial authority, and text-writers, is that ``executors or administrators are generally bound by all the covenants or contractual obligations of their decedents, except such as are personal in their nature and of which personal performance by the decedent is of the essence, or such as are terminated by decedent's death, even though performance is detrimental to the estate; and where the personal representative neglects or refuses to carry out the contract of his decedent, the other party has the usual remedies, as in electing to treat it as rescinded and claiming damages.' . . . ``"Where the contract . . . is of an executory nature, and the personal representative can fairly and sufficiently execute all the deceased could have done, he may do so and enforce the contract." (Parsons on Contracts, sec. 131.)E converso, the personal representative is bound to complete such a contract, and, if he does not, may be made to pay damages out of the assets. (Siboni v. Kirkman, 1 Mees. W. 418.)' (Janin v. Brown, supra; see, also, McCann v. Pennie, supra;Quick v. Ludbarrow, 3 Bulstrade Rep. 30; Hawkins v. Ball'sAdm., 18 B. Mon. (Ky.) 816; Halyburton v. Kershaw as Adm.,etc., 3 Desau. (S.C.) 105; Billing's Appeal, 106 Pa. 558; 2 Woerner's American Law of Administrators, 3d ed., p. 1041, sec. 328; 2 Williams on Executors and Administrators, 10th ed., p. 1348.)" In re Burke's Estate, 198 Cal. 163, 244 P. 340, 44 A.L.R. 1341.

"An instrument founded upon a consideration, whereby one agrees to pay another a definite sum, does not partake of a testamentary character simply because the time of payment be postponed until death. In re Griswold's Estate, 113 Neb. 256,202 N.W. 609; In re Conger's Estate, 113 Misc. Rep. 129,184 N Y Supp. 74; Lawrence v. Scurry, 187 Iowa 1055, 175 N.W. 22;Foxworthy v. Adams, 136 Ky. 403, 124 S.W. 381; Ann. Cas. 1912A 327, 27 L.R.A. (N.S.) 308." Gostina v. Whitham, 148 Wash. 72,268 P. 132.

In the Gostina case it was urged that the instrument marked an attempt to make a testamentary disposition of a certain amount of the estate of decedent, and therefore is void as not being in proper form as a will. This court found the instrument was executed for a valuable consideration and did not constitute a testamentary disposition of the property.

In Compton v. Westerman, 150 Wash. 391, 273 P. 524, this court had under consideration an agreement providing that the maker was no longer obligated for repayment upon the death of the payee prior to the time the note had been paid. We held that this agreement was not invalid as an illegal testamentary disposition of property.

In In re Griswold's Estate, 113 Neb. 256, 202 N.W. 609, 38 A.L.R. 858, cited in the Gostina case, supra, a decedent made a gift to the endowment fund of Nebraska Wesleyan University in the sum of five thousand dollars, due and payable at the donor's death. A claim was accordingly filed against the estate. It was urged that the instrument in question is testamentary in character and not enforceable as a claim against the estate. The court said:

"It is conceded, and is undoubtedly the law, that if a promissory note or any other written contract is supported by a sufficient consideration the fact that performance is postponed until after the death of the promisor does not of itself give to the instrument a testamentary character so as to require execution in accordance with the statute of wills."

Courts of equity uphold agreements entered into by owners of real estate for conveyance of fee title therein where claimant has been put into possession as tenant during the lifetime of the owner and has performed the conditions of the agreement entitling him to conveyance of title.

In Book v. Book, 104 Pa. St. 240, the writing in question provides, in part:

"The title to said farm, if not made to said M.H. Book in fee by said Jacob Book in his lifetime, shall be made so to him by said Jacob's legal representatives so as to assure to said M.H. Book, his heirs and assigns the land and premises herein before described."

The court held this to be a contract and not a will and hence not revoked by a subsequent will, and the court concluded:

"``It is certainly the tendency of all the modern authorities to maintain the general doctrine, which may be stated as a formula, that whenever the party has the power to do a thing (statute provisions being out of the way) and means to do it, the instrument he employs shall be so construed as to give effect to his intention.' Tested by this principle the question is of easy solution. In form, the instrument upon which the contention hinges has all the features of a contract. It is impossible to read it without coming to the conclusion that both parties regarded it as an agreement for sale of the land, on terms therein specified. It contains mutual covenants of the parties by which they respectively bound themselves to the performance of certain things. They each acquired rights and assumed reciprocal obligations which took effect, not upon the death of Jacob Book but immediately upon the execution of the instrument. By the terms of the instrument, Jacob Book not only became entitled to the consideration money therein mentioned, but he acquired the right to the erection of a new dwelling-house or the repair of the old one, and thereafter during his life, to have the buildings so kept in repair, at the expense of his son Michael, as to make them reasonably comfortable and suitable for use. He also secured for his daughter Jemima the right to receive one hundred and fifty dollars annually, during life, and a room in the mansion house for her own use while she remained single. On the other hand, Michael acquired the right to take timber and other materials from the land for the building and the repairs he agreed to make; also the right to require his father to pay all taxes and ``to use the premises in such reasonable manner as not to deteriorate or depreciate their value,' and at his father's death, if not before, to have the legal title to the land assured to him by an appropriate conveyance. It is very clear that for the breach of some of these covenants, at least, the parties respectively would have had a right of action against each other. If Michael, for example, had refused to build the new house or make the stipulated repairs, it cannot be doubted his father would have had a right of action against him for damages. These and other characteristics of the instrument clearly distinguish it from a will, which, being intended to take effect upon the death of the testator and not before, is ambulatory and revocable during his life, while, on the other hand, the paper under consideration is a contract between two parties, securing rights and creating obligations which are enforcible by the parties respectively, and not revocable at the pleasure of either without the assent of the other."

Another court said:

"We deem it sufficient to say that we understand it to be the settled law in this State that papers are to be construed and given effect according to the intent of the parties as appearing from the papers. See Topp v. White, 12 Heis. 168, and following; see also 1 Sneed 149; 2 Cold. 583; 2 Sneed 564; 2 Heis. 8 and 405; 7 Lea 105. And in ascertaining the intention the court will look to the situation of the parties, the motive that led to the agreement and the objects designed to be effected by it. Plainly stated, without the use of technical words or phrases, it is evident that Thomas Eastland desired his sons to enter into immediate possession of the land and to cultivate the same and to take charge of the personal property turned over to them and to operate the farm; but he also wished to secure a living for himself and wife until both of them should die, and it was his obvious purpose, as we think, to retain such possession and control as would enable him to secure these ends, and to provide that when his sons had complied with all the conditions imposed in the paper that the land was to be theirs and that the title should then vest and pass, but not until then, and if they should not, on the death of himself and wife, have complied with all the conditions, then the title was not to vest. We think this purpose is too plain for controversy, and it is no objection to the instrument, as we think, that the title was not to vest until after the death of the grantor, nor until the performance of certain conditions precedent. See Topp v. White, 12 Heis. 173, and other cases cited by counsel." Savage v. Bon Air Coal, Land Lumber Co., 2 Tenn. Chanc. App. 594.

In Meck's Appeal, 97 Pa. 313, a case was presented which is almost identical with the facts in the instant case, and the court held the instrument to be a contract and not a will and hence not revoked by the provisions of a subsequent will. The court said:

"The question may well be asked, whose will? It is a contractinter partes, and in this respect differs from Turner v.Scott, 1 P.F. Smith 126, and other cases in which a conveyance of land intended to take effect after the death of the grantor, was held to be a testamentary disposition of the property. Here the contract was expressly stated to be for the sale and purchase of the farm for a price agreed upon; the purchase-money to be paid after the death of the vendor, and the title to be made by his executors and administrators; in the meantime the vendee to occupy the premises under a stipulated rent."

See Annotation, 11 A.L.R. 88 (III c2w).

Upon application by the executor, the superior court may enter an order directing the executor to convey real property to the appropriate party if the decedent had already entered into a contract in writing to convey real property.

"If any person, who is bound by contract, in writing, to convey any real property, shall die before making the conveyance, the superior court of the county in which the estate is being administered, may upon application of the executor or administrator, without notice, make an order authorizing and directing the executor or administrator to convey such real property to the person entitled thereto." Rem. Rev. Stat., § 1558 [P.C. § 10005].

Hyde v. Heller, 10 Wash. 586, 39 P. 249.

"Specific performance of a decedent's contracts for the sale of land has been held to be within the jurisdiction ``pertaining to probate courts,' (and is in some States under certain conditions conferred upon Probate courts by statute) and, whether specific performance be authorized or not, under constitutional ``jurisdiction in matters relative to estates of deceased persons' a statute is valid conferring on the personal representative, under order of the Probate court, permission to convey, by deed, real estate which the decedent had contracted to convey." 1 Woerner, The American Law of Administration (3d ed.), 525, § 154.

It is true that actions to compel the specific performance of a contract belonged originally to the exclusive jurisdiction of courts of equity, but by conferring new power upon the law courts by statutory legislation, the former jurisdiction of equity to grant its relief has not been abridged by the above mentioned statute. The Church of Christ of Palouse City v. Beach, 7 Wash. 65,33 P. 1053; 1 Pomeroy, Equity Jurisprudence, (2d ed.), 519, § 279.

"On the first proposition, whether the title to the estate that belonged to the deceased vested immediately in the heirs upon his death or not, it seems to us it is not necessary to decide; for the investiture, whatever it may be, or whenever it may occur, must be subject to claims that have legally attached by contracts with the deceased before his death. Or, in other words, the heirs take subject to the rights under the contract. The heir cannot take anything more than the devisor had at the time of his death, because the devisor could not will any more than he possessed. The will cannot possibly operate to abridge or destroy rights which have already attached, or enlarge the estate. All the right that Mrs. Heller had in this land, after she had entered into the contract of sale, was the right to the money which represented the purchase price (excepting, of course, the right to rescind under certain contingencies); that is all the interest she could have assigned or conveyed or devised. Her estate cannot be augmented by the mere fact of her death; and neither can it be diminished. Her heirs under her will must take just what she had a right to devise and nothing more, and she had a right to devise what she had and nothing more." Hyde v.Heller, supra. [4] Appellants urge that paragraph 17, by which Murphy imposed a restraint upon his right to alienate his interest, renders the instrument void. A reasonable restraint upon the alienation of property is not invalid. Kentland Cole Coke Co.v. Keen, 168 Ky. 836, 183 S.W. 247, L.R.A. 1916D 924.

Here, Murphy had entered into a lease for the duration of his natural life. There is a division of authority as to whether a restraint of alienation for the lifetime of the grantor or grantee is valid or not. 2 Page on Contracts (2d ed.), 1400, § 693. We are of the view that a restraint upon alienation of property for the lifetime of the grantor is not invalid.McWilliams v. Nisby, 2 Serg. R. (Pa.) 507, 7 Am. Dec. 654;Gallaher v. Herbert, 117 Ill. 160, 7 N.E. 511. The time which did expire between the execution of the instrument and the death of Murphy is so short that no unreasonable restraint upon the alienation of the property was, in fact, imposed.

We have carefully examined the cases cited by appellants, and find them distinguishable from the instant case by reason of the fact that this instrument partakes of the nature of an executory contract and created a present interest in the association. Complete possession over the property was given to the association, and it specifically provided Murphy was not to part with the fee, and in the event he attempted to do so, the fee was to forfeit immediately to the association. This instrument also provided, in effect, that performance under the terms of the lease, and with the association in possession at Murphy's death, should constitute sufficient consideration and the executor should convey title pursuant to its terms.

Coming now to a consideration of the cases cited by appellants, United States Trust Co. v. Giveans, 97 N.J.L. 265,117 A. 46, two joint owners of certain personal property attempted to pass title after death to a survivor by a certain instrument. The instrument passed no present interest and consideration was lacking.

Glover v. Fillmore, 88 Kan. 545, 129 P. 144, is distinguishable because the contract vendee did not have exclusive possession, but there was joint occupancy by the contract vendor and vendee, and no present interest was conveyed.

Taylor v. Wilder, 63 Colo. 282, 165 P. 766, differs because there was no present interest or possession and no interest was conveyed prior to death.

Knight v. Knight, 133 Miss. 74, 97 So. 481, is different because no present interest is passed. A life estate was reserved. An exclusive possession was to be enjoyed only after the death of the grantor.

Young v. O'Donnell, 129 Wash. 219, 224 P. 682, is distinguished in that no present interest passed to the grantee, the grantee was not given immediate possession, the grantor reserved a life estate, and, under the terms of the grant, the grant therein was uncertain of fulfillment.

In re Losch's Estate, 264 Pa. 58, 107 A. 375, is different because it vested no present interest nor is there any showing that possession was given to the grantee during the grantor's lifetime.

The judgment is affirmed.

BEALS, GERAGHTY, ROBINSON, and TOLMAN, JJ., concur.