Gibson v. Slater

• Citation: 42 Wash. 347,84 P. 648
• Parties: GIBSON v. SLATER et ux.
• Decision Date: 17 March 1906
• Court: United States State Supreme Court of Washington

84 P. 648

42 Wash. 347

GIBSON v. SLATER et ux.

Supreme Court of Washington

March 17, 1906

Appeal from Superior Court, Lincoln County; Miles Poindexter, Judge.

Action by M. F. Gibson, as administrator of the estate of Laura Slater, deceased, against Frank Slater and wife. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

H. A P. Myers, C. S. Voorhees, and Reese H. Voorhees, for appellants.

A. C Routhe and Martin & Grant, for respondent.

CROW J.

On February 4, 1903, respondent, M. F. Gibson, as administrator of the estate of Laura Slater, deceased, commenced action No 3,269 in the superior court of Lincoln county against appellants, Frank Slater and Mrs. Frank Slater, his wife, to recover possession of certain real estate, being the action in which this appeal is prosecuted. In his second amended complaint he alleged that appellants are husband and wife; that on or about January 1, 1899, one Laura Slater died intestate, leaving certain minor heirs, and also leaving as her separate estate 240 acres of land in Lincoln county, Wash.; that after her death appellant Frank Slater immediately and wrongfully seized possession of said real estate, and with his wife, Mrs. Frank Slater, has ever since retained the same; that the rental value of said land has been $1,000 per year since January 1, 1899; that on October 21, 1902, respondent, M. F. Gibson, was duly appointed and qualified as administrator of the estate of said Laura Slater, deceased, and that on November 15, 1902, he demanded possession of said real estate, which appellants refused, claiming to own the same. Appellants demurred to the second amended complaint for (1) defect of parties plaintiff; (2) defect of parties defendant; (3) want of facts sufficient to constitute a cause of action. This demurrer being overruled, appellants answered, making certain denials and affirmatively alleging that prior to June 15, 1899, appellant Frank Slater, and said Laura Slater, now deceased, were husband and wife, residing in the state of Oregon, where Frank Slater owned certain real estate which, under the laws of Oregon, was his individual and separate property, and to which the said Laura Slater, then his wife, had no claim; that on said June 5, 1899, appellant Frank Slater with his then wife, Laura Slater, moved to Lincoln county, Wash., where they resided until January, 1900, when said Laura Slater died intestate, leaving surviving her as her heirs at law Edward Broadley, William Broadley, George Broadley, Frank Broadley, Susie Fawcett, Sadie Fawcett, Allen Fawcett, and Zebbie Fawcett, issue of said Laura Slater by former husbands; that on or about June 15, 1899, said Frank Slater exchanged his Oregon real estate for 160 acres of the real estate in the second amended complaint described, which then became his separate property; that on or about June 15, 1899, one Frank Broadley and his wife deeded to appellant Frank Slater the remaining 80 acres of the real estate described in the second amended complaint, which then became the community property of said Frank Slater and his then wife, Laura Slater; that since the death of said Laura Slater, and prior to the appointment of any administrator, appellant Frank Slater had paid all debts of her estate, and that no debts were outstanding at the time of the appointment of respondent, M. F. Gibson, as administrator. Appellant Frank Slater intermarried with his present wife and co-appellant since the decease of said Laura Slater. During the trial appellants were permitted to amend their answer by alleging that said Frank Slater, since the death of said Laura Slater, had made permanent improvements on said land of the value of $4,000. On May 9, 1904, Zebulon Fawcett and Sarah Fawcett, minors, by their guardian ad litem, and Susan Fawcett, three of the heirs at law of said Laura Slater, deceased, having first obtained leave of court, filed a complaint in intervention in said cause No. 3,269. It is not necessary to state the allegations made therein, but in their prayer they asked that the entire 240 acres described in the second amended complaint be given into the immediate possession of respondent, as administrator of the estate of Laura Slater deceased. There is no showing that Frank Slater ever applied for letters of administration on the estate of his deceased wife in said 80 acres which he admits to have been community property, but on July 20, 1903, he instituted in the superior court of Lincoln county action No. 3,405, wherein he was plaintiff, and Edward Broadley, William Broadley, George Broadley, Frank Broadley, Susie Fawcett, Sadie Fawcett, Allen Fawcett, and Zebbie Fawcett, the issue and heirs at law of Laura Slater, deceased, and M. F. Gibson, as administrator of the estate of Laura Slater, deceased, were defendants, to quiet his title to the 160 acres of said land which, in his answer in cause No. 3,269, he had claimed to be his separate estate. In his complaint he made substantially the same allegations as those contained in his answer in cause No. 3,269. On January 5, 1905, an order was made consolidating said causes No. 3,269 and No. 3,405 so that the same might thereafter be held together and tried as one action. After this consolidation, respondent, M. F. Gibson, as administrator, filed one pleading to serve as a reply to appellants' answer in cause No. 3,269, and as an answer to his complaint in cause No. 3,405. On February 23, 1905, the consolidated actions were tried before a jury, and the following verdict was returned: 'We, the jury duly impaneled to try the issues in the above-entitled cause, do find for the plaintiff, as administrator of the estate of Laura Slater, deceased, that he is entitled to the possession of the following described real estate, to wit: The N.E. 1/4 of section 31 and W. 1/2 of the N.W. 1/4 of section 32, township 24, range 39 E. W. M. Lincoln county, Wash., described in plaintiff's complaint. We do further find that said plaintiff, as such administrator representing the estate of Laura Slater, deceased, in his representative capacity, and the heirs of the said Laura Slater are the owners and hold the title to said property in fee simple, and we assess their damage for the detention of said property in the sum of $3,600, being the rents and profits thereof.' Afterwards appellants, Frank Slater and Mrs. Frank Slater, interposed a motion for judgment in their favor non obstante veredicto. This motion was sustained as to the damages found which were offset by order of the court against the value of the permanent improvements made by appellants, Slater and wife. Thereupon judgment was entered upon the verdict in favor of respondent, M. F. Gibson, as administrator for the immediate possession of all of said real estate. From said judgment Frank Slater and Mrs. Frank Slater, his wife, have appealed to this court.

Respondent has moved to strike appellants' brief and dismiss this appeal, but, as his motions are without merit, they will be denied.

Appellants have not caused any statement of facts to be proposed served, or filed. Their assignments of error are all based upon the one contention that the trial court erred in overruling their demurrer to the second amended complaint. Relying on section 4640, Ballinger's Ann. Codes & St., they contend that respondent, M. F. Gibson, as administrator has no right to the possession of said real estate; no outstanding unpaid debts of the estate being alleged in the second amended complaint. It is not urged that respondent was improperly or illegally appointed as administrator. In fact, the regularity or necessity of his appointment could not be questioned or attacked in this collateral proceeding. Appellants, in their opening brief, say: 'Under existing legislation the absence from the second amended complaint of any allegation of a necessity for the possession of the lands in controversy by the administrator, for the payment of 'debts, family allowance, expenses of administration' or 'other charges for which such real estate is liable under existing laws,' is manifestly fatal to the integrity of the cause of action attempted to be asserted therein. Such allegation was absolutely essential, under the rule at common law, to the right of an administrator to the possession of the decedent's real estate, and the act of 1895 (section 4640, 1 Ballinger's Ann. Codes & St.), has clearly restored the common-law status, in that behalf, in this state.' In other words, appellants simply contend that said section 4640, which was enacted in 1895, was intended by the Legislature to so qualify the scope and effect of sections 6200, 6296, and 6297, Ballinger's Ann. Codes & St., as to leave the right of an administrator to the possession of real estate as it existed at common law--that he could in no event reduce the same to his possession except for the purpose...