Dunn v. Peterson

• Decision Date: 18 April 1892
• Citation: 4 Wash. 170,29 P. 998
• Parties: DUNN v. PETERSON ET AL.
• Court: Washington Supreme Court

29 P. 998

4 Wash. 170

DUNN v. PETERSON ET AL.

Supreme Court of Washington

April 18, 1892

Appeal from superior court, King county; R. OSBORN, Judge.

Action by Elizabeth F. Dunn against Niel S. Peterson and Jarvis Conklin Mortgage Trust Company, a corporation. Judgment for defendants. Plaintiff appeals. Affirmed.

Fishback, Hardin & Meek, for appellant.

Arthur, Lindsay & King, for respondents.

HOYT J.

This is substantially an action of ejectment. From the complaint it appears that plaintiff is the sole devisee of the owner of an undivided one half of the land therein described, and that the will under which she claims had been recently admitted to probate, as a foreign will, in the county in which such land is situated. In the paragraph relating to the probating of such will there is no allegation that letters testamentary or of administration with will annexed were not issued, nor is such fact any where alleged in said complaint. Under these circumstances, could the plaintiff maintain the action? The will is fully set out in the complaint, and is in the ordinary form, and contains no provision exempting the estate from the ordinary and full control of the probate court. This being so, it must be presumed, in the absence of an allegation to the contrary, that the usual results followed the probating of such will. Section 884, Code Proc., is as follows: "After the probate of any will, letters testamentary shall be granted to the persons therein appointed executors. If a part of the persons thus appointed refuse to act, or be disqualified, the letters shall be granted to the other persons appointed therein. If all such persons refuse to act, letters of administration with the will annexed shall be granted to the person to whom administration would have been granted if there had been no will." From which it seems plain that, upon the admission to probate of a will in the usual form, the issuing of letters testamentary or of administration with will annexed would follow. A reasonable construction of the language of such section necessarily leads to this result. Besides, there are numerous other provisions of the statute in relation to the probating of wills which lead to the same conclusion. These provisions, it is true, apply in terms to domestic wills only. But section 883, Code Proc makes all such provisions applicable to a foreign will, when admitted to probate here. The facts stated in the complaint raise at least a prima facie presumption that the appointment of an administrator with will annexed followed the admission of said will to probate, and, in the absence of an allegation to the contrary, such presumption becomes conclusive for the purposes of this case. A necessary conclusion from what has been said is that administration of the estate under the will was set on foot at the time said will was admitted to probate. The administration thus shown to have been instituted will be presumed to have been in progress at the date of the institution of the action; for while it is possible that this presumption would be overcome by a long lapse of time, yet in this case the action was brought so soon after the...