Ball v. Clothier

• Decision Date: 12 March 1904
• Citation: 34 Wash. 299,75 P. 1099
• Court: Washington Supreme Court
• Parties: BALL et al. v. CLOTHIER et al.

75 P. 1099

34 Wash. 299

BALL et al. v. CLOTHIER et al.

Supreme Court of Washington

March 12, 1904

Appeal from Superior Court, Skagit County; Jeremiah Neterer, Judge.

Action by Anthony W. Ball and others against Harrison Clothier and others. From a judgment for plaintiffs, defendants appeal. Modified.

Thos. Smith, Million & Houser, and Gable &amp Seabury, for appellants.

E. W Taylor and Govnor Teats, for respondents.

MOUNT J.

This appeal is prosecuted from a decree of the lower court adjudging certain probate proceedings in the estate of J. B Ball, deceased, void, and setting aside an administrator's deed for the south half of the northeast quarter and the north half of the southeast quarter of section 24, township 35 north, of range 4 east. Defendants claim title to different parts of said real estate under said deed. The facts shown by the record are substantially as follows: Jesse B. Ball died on February 4, 1889, leaving an estate in Skagit county and other places. His widow, Caroline Ball, survived him. Also three minor children survived him, as follows: Anthony W. Ball, then aged nine years; Zula Matilda Ball, then aged seven years; and Zenora Kate Ball, then aged five years. This latter-named child died the same year. Deceased also left two grown children by a former marriage, viz., Emma Welsh and Warren T. Ball. A few days prior to his death, Mr. Ball made his will, by the terms of which he gave to Emma Welsh $5; to Warren T. Ball certain real estate in Vancouver, B. C.; to his widow, Caroline Ball certain personal property; and to his three minor children all the remainder of his property, share and share alike. He directed that all his debts be paid from the portion devised to said minors, and that 'if at the time of his death the said minor children be not twenty-one years of age the legacy given to them except so much thereof as shall be necessary for their support and education shall be retained by said executors upon trust to be paid to them when the youngest shall have attained the age of twenty-one years, and in case of the death of one of said minor children prior to said division the portion bequeathed to said child shall be divided among the two remaining.' J. E. Smith and A. T. Marshall were named as executors, and $300 was bequeathed to each as compensation for acting as such executor. On February 18, 1889, the will was admitted to probate by the probate court of Skagit county, in the then territory, and the executors named in the will were appointed to carry out the provisions thereof. They were required to file a bond in the sum of $12,000. A joint and several bond was executed and filed by said executors, which bond was by order of the probate court approved and entered of record. The executors thereupon qualified by taking oath of office, and letters testamentary were issued to them, and they entered upon the discharge of their duties. The estate was thereafter appraised, showing some $7,200 of personal property, and real estate of the value of $5,641. But the real estate in question in this action does not appear in the appraisement. Notice to the creditors was published. On September 24, 1889, a semiannual account of the executors was filed, showing the moneys collected to that time, and the claims allowed. No order appears to have ever been made by the court upon this report. On November 18, 1889, Mr. Marshall, one of the executors, filed with the probate court his resignation, without attempting to comply with the statute, and on the same day the said court entered an order accepting the resignation, and discharging Mr. Marshall as executor, and releasing the sureties on his official bond. Thereafter, on December 5, 1889, the other executor, Mr. Smith, filed his resignation, and published a notice thereof as required by law, to the effect that he had filed his account as executor, and resignation of his trust, and that the same would come on for hearing on January 28, 1890, at 2 o'clock p. m., 'and all persons interested in said estate are notified to appear and show cause why the said account shall not be settled and said resignation accepted.' On the 28th day of January, 1890, no one objecting, the resignation was accepted, and Mr. Smith discharged as executor, and the sureties on his official bond released. At the same time and place Caroline Ball filed her petition asking the appointment of said Smith and one Harrison Clothier as administrators of the estate. No notice of this application was given to any one, and the court, in the same order which discharged Mr. Smith as executor, appointed him, together with Mr. Clothier, as administrators de bonis non, and fixed their bonds as such administrators at $12,000. A joint and several bond was filed and approved by the court. Thereafter, on March 25, 1890, these administrators presented their petition, containing allegations substantially as required by statute, for the sale of the real estate now in question. On the next day the probate court issued an order directing all interested parties to appear on April 23, 1890, and show cause why the said real estate should not be sold. A copy of this order was published four times in a newspaper, but four weeks' time did not elapse between the first publication and the date of the hearing. A copy of the notice was served on the widow. No notice was given to the minors, and no guardian ad litem was appointed for them. On April 23, 1890, at the time set for the hearing, no one appearing to contest the petition, an order was made directing the sale of the real estate. No time or place for the sale was fixed by the order. The administrators thereupon fixed the time, and due notice thereof as required by law was given. The sale was held on May 20, 1890, at public auction, and the property was sold to John P. Millett, one of the appellants, for $9,100. A return of the sale was made and filed in the probate court on the 24th day of May, 1890, which was on Saturday. An order was made on the 26th day of May, 1890, confirming the sale. Thereupon an administrator's deed was executed and delivered to the purchaser. The purchase price was paid and accounted for to the estate. After Mr. Millett purchased the property, he conveyed the same to Mr. Murdock, one of the appellants, who platted a part of the land into town lots, and afterwards conveyed it to the Grand Junction Land Company, which company sold some of the lots to the other defendants who improved them, and are now in possession thereof. In 1891 the administrator J. E. Smith died, and thereafter the surviving administrator, H. Clothier, administered upon the estate until September 18, 1897, when his final account was approved and he was discharged. E. C. Million was thereupon appointed administrator in his stead. Mr. Million appears to have done nothing with the estate until March 29, 1901, when, upon his petition, after the minor heirs had become of age, he was discharged, and all that remained of the estate was distributed to the respondents Anthony W. Ball and Zula Matilda Ball Manning. Up to March 1, 1893, no guardian ad litem was ever appointed for the said minors, Anthony W. Ball and Zula Matilda Ball. They were not served with any notice of any of the petitions, or any of the proceedings in the course of administration up to that time, although during all of said times they were residents of Skagit county, were named as minor heirs, and were the sole beneficiaries of the real estate being administered upon. Subsequent to March 1, 1893, they were represented in all proceedings by a guardian ad litem appointed by the court. After becoming of age, and on May 10, 1901, these heirs executed a power of attorney to Warren T. Ball, authorizing him 'to grant, bargain, sell, convey, mortgage, or dispose of any and all real estate within the state of Washington in which we may have any interest.' The said Warren T. Ball, acting under said power of attorney, joined in the petition of Million for a discharge as administrator and for a distribution of the estate. Mr. Million was thereupon discharged, and the estate distributed to the respondents, who brought this action within one year after arriving at their majority, seeking to review the orders and errors of the probate court in directing a sale of the land in question. They allege, in substance, that the executors were wrongfully discharged; that the administrators were not legally appointed; that no notice of any of the proceedings in the probate court was ever given to them, and no appearance was made by them; that the administrators conducted the sale fraudulently, and in all their dealings with the estate, up to and including the sale of the real estate in question and the confirmation of the sale, the administrators acted in fraud of the rights of plaintiffs; and that the probate court had no jurisdiction to make the orders complained of--all of which orders are set out in the complaint. They prayed that the order of sale and all proceedings had thereunder be set aside and held for naught, and that they be decreed to be the owners of the property, free from any claims of defendants by reason of their purchase and possession of the property. After motion to make the complaint more definite and certain and to strike certain portions thereof and demurrers had been overruled, defendants answered separately, denying generally the allegations of the complaint, and alleging that the probate court proceedings were regular; that the administrator's sale in all respects complied with the law; that Millett, the purchaser of the land at administrator's sale, conveyed the property to William Murdock; that Murdock thereafter platted a half of it into town lots, streets, and alleys, known as 'Grand Junction Land...