Estate of Van Dyke, Matter of

• Decision Date: 22 May 1989
• Docket Number: No. 22242-2-I,22242-2-I
• Citation: 772 P.2d 1049,54 Wn.App. 225
• Parties: In the Matter of the ESTATE OF Laverne W. VAN DYKE, Deceased. Gracie L. JONES, Appellant, v. Lily F. NIELSEN; Bonnie Howeiller; Jon Van Dyke; Pennie Smith; Jean Wilson; Kathy Gorham; and Mary Stevens, Respondents.
• Court: Washington Court of Appeals

Page 225

54 Wn.App. 225

772 P.2d 1049

In the Matter of the ESTATE OF Laverne W. VAN DYKE, Deceased.

Gracie L. JONES, Appellant, v. Lily F. NIELSEN; Bonnie Howeiller; Jon Van Dyke; Pennie

Smith; Jean Wilson; Kathy Gorham; and Mary

Stevens, Respondents.

No. 22242-2-I.

Court of Appeals of Washington,

Division 1.

May 22, 1989.

Peter M. Hebert, Theodore M. Rosenblume, Charles Z. Smith & Associates, Seattle, for Gracie L. Jones.

Peters Parsons, Stuart R. Dunwoody, Davis, Wright & Jones, Seattle, for Lilly F. Nielsen, Bonnie Howeiller, Jon Van Dyke, Pennie Smith, Jean Wilson, Kathy Gorham and Mary Stevens.

PEKELIS, Judge.

Gracie L. Jones appeals from the summary judgment dismissal of her will contest petition, alleging that the trial court erred in determining that her failure to issue citations to all legatees pursuant to RCW 11.24.020 compelled dismissal of her action as a matter of law. She contends that the trial court should have made a CR 19(b) determination of whether the nonjoined legatees were indispensable parties. We agree and remand for such a determination.

The relevant facts are undisputed. A document alleged to be the Last Will and Testament of Laverne W. Van Dyke was executed on June 6, 1986, and was admitted to probate February 25, 1987, upon the petition of Lily F. Nielsen, executrix. On June 24, 1987, within the 4-month limitation period set forth by RCW 11.24.010, Gracie L. Jones filed a petition to contest Van Dyke's will. In this original petition, no respondents were named and the record does not reflect which, if any, legatees were personally issued citations. Jones filed an amended petition on July 23, 1987, which named all the individual legatees as well as the executrix of the estate as respondents. Jones served 20-day summonses and copies of the amended petition on each of the individual legatees, and on the executrix.

However, three charitable institution legatees, Children's Orthopedic Hospital, Salvation Army and Millionair Club were neither named as parties nor issued citations upon the filing of either petition. Jones had sent them copies of her original petition by certified mail, return receipt requested. The return receipts indicate that Salvation Army and Millionair Club received the petition on June 24, 1987. The return receipt for Children's Orthopedic Hospital indicates a mailing date of June 23, 1987 and that Children's Orthopedic Hospital received it, but does not show a receipt date. ¹

Each of the three charitable legatees would receive 5 percent of the residue of Van Dyke's estate under the June 6, 1986 will. They would similarly receive 5 percent of the residue under a October 18, 1985 will that Jones asserts is truly Van Dyke's Last Will and Testament. Although the trial court found that because of this their interests would not be directly affected by the outcome of the will contest, it nevertheless concluded that the three charitable institution legatees were necessary parties under RCW 11.24.020 and that Jones' failure to serve them constituted inexcusable neglect precluding a CR 15(c) amendment to her petition. Thus, it dismissed Jones' will contest with prejudice.

Jones contends that RCW 11.24.010 and 020 do not conflict with CR 19. (b). ² She argues that while RCW 11.24.020 does, in effect, establish the necessary parties under CR 19(a) to a will contest action, it does not decide the question of whether these are indispensable parties under CR 19(b). Thus, Jones seeks a remand to the trial court for a factual determination under CR 19(b) as to whether the legatees who were not issued citations were indispensable parties.

Nielsen responds that RCW 11.24.020, requiring service on all legatees, prevails over CR 19. Alternatively, Nielsen contends that even if the will contest statute does not prevail over the court rule, the unnamed legatees are indispensable parties as a matter of law. Nielsen bases this contention on her claim that there is no guarantee that the October 18, 1985 will would be the one admitted to probate if the June 6, 1986 contested will were found to be invalid. Finally, Nielsen contends that summary judgment should be upheld because there were no genuine issues of material fact on the merits of Jones' allegations. ³

In reviewing an order of summary judgment, the appellate court engages in the same inquiry as the trial court. Summary judgment is to be granted only if the record demonstrates that there is no genuine issue as to any fact that is material to the cause of action, Seven Gables Corp. v. MGM-UA Entertainment Co., 106 Wash.2d 1, 12, 721 P.2d 1 (1986), and that the moving party is entitled to judgment as a matter of law. CR 56(c); Sheriffs' Ass'n v. Chelan Cy., 109 Wash.2d 282, 294, 745 P.2d 1 (1987).

We address first the question of interpretation of RCW 11.24.010 and .020. A will contest is a purely statutory proceeding, and the court must be governed by the provisions of the applicable statute. In re Kane's Estate, 20 Wash.2d 76, 83, 145 P.2d 893 (1944). The jurisdiction of the trial court is derived exclusively from the statute, and may be exercised only in the mode and under the limitations therein prescribed. State ex rel. Wood v. Superior Ct., 76 Wash. 27, 31, 135 P. 494 (1913).

RCW 11.24.010 provides:

If any person interested in any will shall appear within four months immediately following the probate or rejection thereof, and by petition to the court having jurisdiction contest the validity of said will, or appear to have the will proven which has been rejected, he shall file a petition containing his objections and exceptions to said will, or to the rejection thereof. Issue shall be made up, tried and determined in said court respecting the competency of the deceased to make a last will and testament, or respecting the execution by a deceased of such last will and testament under restraint or undue influence or fraudulent representations, or for any other cause affecting the validity of such will.

If no person shall appear within the time aforesaid, the probate or rejection of such will shall be binding and final.

RCW 11.24.020 provides:

Upon the filing of the petition referred to in RCW 11.24.010, a citation shall be issued to the executors who have taken upon themselves the execution of the will, or to the administrators with the will annexed, and to all legatees named in the will residing in the state ... requiring them to appear before the court, on a day therein specified, to show cause why the petition should not be granted.

When read together, RCW 11.24.010 and .020 require, on their face, that all legatees residing in the state be issued a citation notifying them of a will contest petition upon its filing, which must occur within 4 months of the will having been admitted to probate. This Jones concededly failed to do. ⁴ The question is, however, whether such a failure automatically deprived the trial court of jurisdiction or whether the court should proceed to engage in the analysis required under CR 19 CR 19 provides for the joinder of persons needed for just adjudication. CR 19(a) provides that

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action....

CR 19(b) provides that

If a person joinable under (1) or (2) of section (a) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable.

The rule goes on to set forth the four factors to be considered by a court in making a CR 19(b) determination.

Jones' argument assumes, and Nielsen does not dispute, that the legatees who must be issued citations under RCW 11.24.020 are necessary parties to the action for purposes of CR 19(a). An analysis of the term "citation" supports this interpretation. A "citation" is the counterpart of a summons in ordinary civil proceedings. In re Murphy's Estate, 98 Wash. 548, 553, 168 P. 175 (1917); see also In re Wheeler's Estate, 71 Wash.2d 789, 795, 431 P.2d 608 (1967); Tucker v. Brown, 20 Wash.2d 740, 805, 150 P.2d 604 (1944). It is the method in probate proceedings for bringing all adverse parties before the court. Murphy's Estate, supra (discussing predecessor statute); see In re Martin's Estate, 82 Wash. 226, 231, 144 P. 42 (1914); RCW 11.64.022 ("citation" to be issued to partner failing to furnish inventory); RCW 11.76.060 ("citation" to be served on surety on bond when personal representative's accounting is allegedly incorrect).

Since RCW 11.24.020 directs the petitioner in a will contest to issue citations to "all legatees named in the will residing in the state", it follows that the Legislature intended that such legatees be made parties, and thus they...