Bayer v. Bayer

• Decision Date: 08 January 1915
• Docket Number: 12207.
• Parties: BAYER et al. v. BAYER et al. (two cases.
• Court: Washington Supreme Court

145 P. 433

83 Wash. 430

BAYER et al. v. BAYER et al. (two cases.

No. 12207.

Supreme Court of Washington

January 8, 1915

Department 1. Appeals from Superior Court, Lincoln County; Jos Sessions, Judge,

Petition by Martha E. Bayer and J. N. Dotson, as guardian of her person and estate, against John A. Bayer and others consolidated with an action by Martha E. Bayer against John A. Bayer and others. Judgment for petitioners, and for plaintiff in the action, and defendants appeal. Reversed with directions to dismiss.

Reynolds, Ballinger & Hutson, of Seattle, for appellants.

Jas. R. Chambers, of Seattle, for Martha E. Bayer.

GOSE J.

In this case two actions were consolidated. The first was brought by petition in the superior court of Lincoln county. The object of the action was (a) to vacate a decree of distribution entered in the superior court of King county upon a nonintervention will, and (b) to vacate a decree of partition entered in the superior court of Lincoln county following the decree of distribution. A second action was brought in the same court to recover the value of a quantity of grain grown upon the land in controversy. Martha E. Bayer was the petitioner in the first action and the plaintiff in the second action. She recovered in both cases in the court below, and this appeal followed.

The salient facts are these: Frederick A. Bayer died testate in King county, where he then resided, on the 8th day of December, 1908. His will bore date December 2, 1908. He named Fred Eidemiller as executor of his will. In his will he declared:

Item 1: 'That all real and personal property in my possession or standing in my name in the state of Washington is the community property of myself and of Martha E. Bayer, my wife; and that all property standing in my name in the state of Oregon is my separate property, subject, however, to my wife's dower rights as prescribed by the statutes of the state of Oregon.'

Item 2: 'I do hereby confirm in my said wife her said community and dower interests aforesaid, and do direct that in the settlement of my estate her said community and dower interests be set apart to her. All the remainder and residue of the property, both real and personal, in my possession or standing in my name at the time of my death, I hereby give, devise, and bequeath to my brothers John A. Bayer * * * Samuel B. Bayer, * * * and my sisters, Kate Bayer * * * and Laura H. Eidemiller, * * * it being my intention that my said wife shall receive and retain her community and dower interests; * * * all my estate remaining after the setting apart of said interest of my wife, shall be divided equally between my brothers and sisters aforesaid.'

The will directs that no bond shall be required of the executor, and provides that the estate shall be settled by the executor without recourse to any court except for the purpose of proving the will--

'hereby conferring upon said executor full power and authority to settle and distribute my said estate in accordance with this my will without interference from any court.'

The will was proven and admitted to probate in the superior court of King county on the 12th day of December, 1908. J. N. Dotson was appointed guardian of the person and estate of Martha E. Bayer, then insane, in the superior court of King county on the 31st day of December following. Dotson, who is a brother of Mrs. Bayer, remained guardian of her person and estate until the 28th day of July, 1913, at which time Mrs. Bayer was adjudged sane. On January 6, 1909, an order was entered in the superior court of King county directing a publication of notice to creditors. On the 20th day of January, 1909, a homestead was set aside to Mrs. Bayer and an allowance was made for her support upon the petition of her guardian, by an order duly entered in the same court. On February 9th the executor filed an inventory wherein all the property in controversy was classified as community property. On February 26th the estate was duly adjudged to be solvent. The order recites 'that said estate may be managed and settled without the further intervention of this court.' On April 23d an order was entered adjudging that due notice had been given to creditors. On June 30th the guardian filed a petition for an advance of $400 to be charged to the distributive share of the estate of his ward. The petition alleges that all the property of the deceased and Martha E. Bayer, both real and personal, was community property. On the same day an order was entered directing an advance of $400 to the widow. On October 23d the executor filed a petition for authority to lease all the real property of the estate for one year. The guardian united in the petition. An order was thereupon entered directing a lease of the property. On February 1, 1910, the executor filed his final account and petition for distribution of the estate, in which he described all the property of the estate real and personal. The petition alleges that all the property, both real and personal, including the rents, issues, and profits of the real estate, is community property, and that the widow's distributive share of the estate is an undivided one-half. On March 8th, after due and legal notice of the hearing had been given conformably to the statute and the order of the court, a decree of settlement and distribution was entered. The decree adjudges that due notice was given of the time and place of settlement. It recites the appearance of the executor in person and by his attorneys, and the appearance of J. N. Dotson, as guardian of the person and estate of Martha E. Bayer, in person and by his attorneys. It recites that the account contains 'not only the condition of the account and of the separate estate of Frederick A. Bayer, deceased, but also of the estate of the community of Frederick A. Bayer, deceased, and Martha E. Bayer, his wife.' It adjudged that the final account was true and correct, except as to one item of $280.75, which it reduced to $40.75. The decree recites 'that said estate consists wholly of the community property of decedent and his said wife.' It described the property of the estate as it was described in the petition for distribution. It distributed the real property, an undivided one-half to the widow, 'the same being in satisfaction of her community interest in said property,' the remaining undivided one-half to the brothers and sisters named in the will, in equal shares; that is, an undivided one-eighth to each thereof. It divided the personal property in the same proportions. There is nothing in the record which shows that any person at any time questioned the jurisdiction of the court to settle the estate.

The real property comprises 2 1/2 sections of land in Lincoln county. Nine hundred and sixty acres, which are referred to as 'the big farm,' are claimed by the widow to be community property. Section 4 she claims as her separate property, and the trial court found in harmony with this view. The trial court also found that the judgment of the superior court of King county is 'absolutely void,' and vacated it, and also vacated the decree entered in the partition proceedings in the superior court of Lincoln county, and divided the personal property on the same basis as the real estate; that is, on the theory that 960 acres were community property and section 4 was the separate property of the widow.

The crucial question is, Is the decree of distribution entered in the superior court of King county void? The Constitution (article 4, § 6) provides that the superior court shall have jurisdiction in all cases in equity, in certain cases at law, and in 'all matters of probate.' Rem. & Bal. Code, § 1444, provides that in nonintervention wills, where it appears to the court, by the inventory filed and other proof, that the estate is solvent, which fact may be established by an order of the court on the coming in of the inventory----

'it shall not be necessary to take out letters testamentary or of administration, except to admit to probate such will, and to file a true inventory of all the property of such estate in the manner required by existing laws. And after the probate of such will and the filing of such inventory all such estates may be managed and settled without the intervention of the court, if the said last will and testament shall so provide: But provided, that in all such cases the claims against such estates shall be paid within one year from the date of the first publication of notice to creditors to present their claims, unless such time be extended by the court, for good cause shown, for a reasonable time.'

This section further provides that if the party named in the will shall fail to execute the trust faithfully, it shall be the duty of the court of the county wherein the estate is situated to cite the executor to appear before the court upon the petition of a creditor of the estate, or of any of the heirs, or of any person on behalf of any of the heirs. It further provides that, if upon such hearing it shall appear that the trust in the will is not faithfully discharged, and that the parties interested, or any of them, have been or are about to be damaged thereby, letters testamentary or of administration shall be had, and that all other matters and proceedings shall be had and required as are now required in the administration of estates.

Under the Constitution the superior court is a court of general jurisdiction. It has jurisdiction of equity cases, actions at law, and proceedings in probate. It has been held that, under the statute to which reference has been made, the executor derives his powers, not from the court, but from the will and that he is in fact a trustee. State ex rel. Phinney v. Superior Court, 21 Wash....