Foley v. McDonnell

• Decision Date: 15 January 1908
• Citation: 48 Wash. 272,93 P. 321
• Parties: FOLEY v. McDONNELL.
• Court: Washington Supreme Court

93 P. 321

48 Wash. 272

FOLEY v. McDONNELL.

Supreme Court of Washington

January 15, 1908

Appeal from Superior Court, Clarke County; W. W. McCredie, Judge.

Action by James Foley against Margaret McDonnell. From an order dismissing the complaint on demurrer, plaintiff appeals. Affirmed.

Thos. O'Day and G. R. Percival, for appellant.

Milton W. Smith, for respondent.

MOUNT J.

The lower court sustained a demurrer to the complaint in this case. Plaintiff refused to amend, and an order of dismissal was entered. Plaintiff appeals from that order.

The complaint, in substance, alleges: That on April 21, 1896 plaintiff obtained a judgment against Columbus McDonnell for the sum of $958.62, besides attorney's fees and costs upon a promissory note. That said judgment was obtained in the state of Oregon after personal service upon said Columbus McDonnell. That subsequently execution was issued in Oregon and returned nulla bona. That at the time said judgment was rendered the said Columbus McDonnell was alive, and that the defendant in this action was his wife. That afterwards, on the 12th day of March, 1901, said Columbus McDonnell, being then the owner of a large amount of property situate in Clarke county in this state, made his will, which, omitting formal parts, is as follows '(1) I direct that my just debts and funeral expenses be first paid out of my estate.

'(2) I give and bequeath unto my executrix hereinafter named all my property, both real and personal, wherever situated, in trust for the purposes herein set forth.

'(3) I give, devise, and bequeath unto my beloved wife, Margaret McDonnell, all my property of every kind and nature, real personal, and mixed, wherever situated.

'(4) I do not give, devise or bequeath anything to my children * * * knowing that my wife will make such provisions for them as will be right and just.

'(5) I hereby nominate, constitute and appoint my wife, Margaret McDonnell the executrix of this my last will and testament, and I direct that no bonds will be required of her, and she is hereby authorized and empowered to sell and dispose of at private sale or otherwise and in any way she shall deem best any or all of my property, both real and personal, without the intervention of any court, and I hereby revoke all former wills and codicils to wills by me made.

'In witness whereof,' etc.

That thereafter, on April 29, 1901, said Columbus McDonnell died in Clarke county, Wash., seised of and owning certain property described. That on May 25, 1901, said will was duly probated in Clarke county, Wash., and the defendant herein, Margaret McDonnell, was appointed executrix and accepted the trust, took possession of all of said property, and now holds and claims the same as executrix, legatee, and trustee under such will. That said property is of the value of $30,000, and passed to defendant by the terms of the will, in trust for the benefit of creditors of said Columbus McDonnell, deceased. That plaintiff is one of such creditors, and that the said estate is solvent, and that there is now more than sufficient to pay all the creditors thereof. That defendant has been requested to pay the plaintiff the amount due upon the said judgment, but has failed and refused to do so. That Columbus McDonnell, deceased, left no property in the state of Oregon, and plaintiff has no plain, speedy, and adequate remedy at law for the recovery of the amount due on said judgment, and applies to the court to compel the defendant to execute the trust, which she is required to do under said will.

It is contended by the respondent that the action is barred under the statute. It will be noticed that there is no allegation that any claim was ever presented to the executrix and allowed as a claim against the estate, or that no notice to creditors was published as required by law. If the action was brought against the defendant as administratrix or executrix of the estate of Columbus McDonnell, deceased, the complaint must show that the claim was first presented to the executor or administrator in order to state a cause of action. Section 6235, Ballinger's Ann. Codes & St.; McFarland v. Fairlamb, 18 Wash. 601, 52 P. 239.

The...