Peterson

INTRODUCTION

A probate court ordered the distribution of real property to a surviving spouse who executed and recorded a deed of trust on the real property in favor of a lender to secure a loan. When the surviving spouse died, and payments were not made on the loan, the lender recorded a notice of default and election to sell the real property. Plaintiffs, who purported to have a remainder fee interest in the real property, brought an action, inter alia, to quiet title to the property. They claimed that the surviving spouse only had a life estate in the real property and had no power to encumber it. The lender contends that the trial court erred in granting a summary judgment in favor of plaintiffs because, inter alia, the surviving spouse had the power to sell the property during her lifetime with the proceeds being divided among her and plaintiffs, the probate court order should be interpreted as providing her with fee title to the property and thus the power to encumber it; and the encumbering of real property with a deed of trust was a permissible conveyance of a fee simple estate in the real property. The lender contends alternatively that the surviving spouse had a…