Drain v. Wilson

• Decision Date: 08 September 1921
• Docket Number: 16478.
• Citation: 117 Wash. 34,200 P. 581
• Parties: DRAIN et al. v. WILSON et al.
• Court: Washington Supreme Court

200 P. 581

117 Wash. 34

DRAIN et al. v. WILSON et al.

No. 16478.

Supreme Court of Washington

September 8, 1921

Department 2.

Appeal from Superior Court, Whitman County; R. L. McCroskey, Judge.

Action by Maria Drain and others against William Wilson and Ed Maguire, as executors of the last will of Patrick Drain deceased, and as residuary legatees under said will. Judgment for defendants on demurrer, and plaintiffs appeal. Reversed.

Neill &amp Sanger, of Pullman, for appellants.

Dow &amp Dow, of Pullman, and Hanna, Miller & Hanna, of Colfax, for respondents.

MITCHELL J.

The amended complaint is substantially as follows: That the defendants, William Wilson and Ed. Maguire, are executors of and residuary legatees under the will of Patrick Drain, who died on April 6, 1919; that the deceased was a bachelor, and was not survived by father or mother, but by one sister, Maria Drain, 9 nephews and nieces (names given) children of a deceased sister, Sarah Develin, and 4 other nephews (names given), children of a deceased sister, Nancy McErlain; that William Wilson was appointed by the superior court of Whitman county and qualified as administrator of the estate, and reported that the persons named were the heirs and only heirs of the deceased, and thereupon filed an inventory of the estate, showing only cash in bank $1,022.42, certificate of deposit in bank $7,500, Liberty Bonds $1,000, and mining stock and personal effects of no value; that in October, 1918, Patrick Drain conveyed to William Wilson certain real property in Whitman county for which Wilson executed and delivered to Patrick Drain his promissory notes, not included in the inventory; that after the inventory was filed the heirs at law employed Messrs. Neill and Sanger, attorneys at law, to institute proceedings against Wilson to compel him to account for the promissory notes, and that pursuant to said employment proceedings were instituted in the superior court that finally resulted in a written settlement dated December 31, 1919, by which Wilson agreed to pay cash in the sum of $1,250 and execute his several notes in specified amounts, due at different dates, totaling $25,000, with interest at 5 per cent. per annum, the notes to be payable to a trustee for the heirs and secured by a mortgage on the real estate sold to Wilson; that Wilson did execute the notes and mortgage which were to be held by one Dow until the final decree of distribution was entered in the matter of the estate; that Wilson thereupon filed a supplemental inventory showing his notes in the sum of $25,000, and $1,250 cash; that in March, 1920, Wilson, as administrator, filed his final account and petition for distribution showing property on hand consisting of cash $7,313.55, Liberty Bonds $1,000, and his own promissory notes in the sum of $25,000, secured by mortgage, setting out in the petition the names of the heirs as already given, and that thereupon the court fixed April 21, 1920, for the hearing, of which notice was duly given; that on April 17, 1920, Wilson presented to the superior court a petition for the probate of an instrument purporting to be the last will and testament of Patrick Drain, deceased, which instrument was proved and submitted as such will, and by which will specific legacies were given to nominated persons in the total sum of $10,100, and all the residue of the estate was given to the executors in trust for designated purposes; that William Wilson and Ed. Maguire were named in the will as executors, were appointed as such by the court, qualified, and are acting as such, and that only two of the heirs of the deceased are mentioned in the will, to each of whom $1,000 is bequeathed; that prior to the stipulated settlement with Wilson there was no agreement between the heirs and Messrs. Neill and Sanger as to the amount to be paid for their services, but thereafter it was agreed by the heirs that upon the distribution of the property there should be assigned to Messrs. Neill and Sanger for their services the equal of $5,000 of the Wilson notes secured by the mortgage; that the plaintiffs and other heirs believed they were the only beneficiaries of the estate at the time Messrs. Neill and Sanger were employed, and rendered services as attorneys, without which the $26,250 would not have been discovered for the estate; that after the appointment of Wilson as administrator he gave due and proper notice to creditors, the first publication of which was on July 4, 1919, requiring claims to be presented within six months, and that no other notice to creditors had ever been given in said estate; that plaintiffs, in October, 1920, before commencing this action, presented a duly verified claim in the sum of $5,000 to the executors to be allowed out of the funds of the estate for the services of Messrs. Neill and Sanger, and that the demand was rejected by the executors; that in good conscience the beneficiaries under the will who would receive the benefits of the services of the plaintiffs through their attorneys are chargeable with a reasonable sum as attorney's fee out of the funds made available by those services, and that those funds are now in the hands of executors under control of the court, as the probate proceedings under the will are still...