Horton v. Barto

• Court: Washington Supreme Court
• Writing for the Court: PARKER, J.
• Citation: Horton v. Barto, 57 Wash. 477, 107 P. 191 (Wash. 1910)
• Decision Date: 25 February 1910
• Parties: HORTON v. BARTO et al.

107 P. 191

57 Wash. 477

HORTON v. BARTO et al.

Supreme Court of Washington

February 25, 1910

Department 2. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by George M. Horton, guardian of Edward Collins, a minor against R. W. Barto and others. Plaintiff had judgment, and defendants Barto appeal. Affirmed.

Blaine Tucker & Hyland, for appellants.

S.D. King and Todd, Wilson & Thorgrimson, for respondent.

PARKER J.

By this suit the plaintiff seeks to have his ward, Edward Collins, adjudged the owner of an undivided one-fourth interest in certain lands in King County, and also to have the same partitioned. Upon the trial it was agreed between counsel for all parties that the cause should be first tried upon the question of the title of the respective parties to the lands involved, and that partition proceedings should await a final determination of the cause upon the question of title. The trial of the cause before the court upon the question of title resulted in a decree favorable to plaintiff. The defendants Barto and wife have appealed.

In 1879 Dinah Sour died intestate in King county. She was then the owner of the lands here in controversy; the same being her separate property. This is the common source of title of all the parties to this suit. She left surviving her, as her only heirs at law, her two children Stephen Collins and Lucinda Gordon, each of whom took by inheritance an undivided one-half of the property left by their mother. In 1882 Stephen Collins died intestate, leaving as his only heirs at law his widow, Annie (or Anna), and their son William H. Collins, each of whom took by inheritance an undivided one- half of the property left by Stephen Collins. This resulted in Annie Collins becoming the owner of an undivided one-fourth of all the property left by Dinah Sour, the mother of her husband, unless her husband had theretofore been divested of title to certain portions thereof, including the lands here involved, by an alleged parol partition, which we will notice later. On June 15, 1886, Annie Collins gave birth to another son, who was then named Edward Sweeney Collins. He also appears to have been known as Ned S. Clalendon (or Clendon), but has generally been known as Ned S. Collins. This is, however, no question as to his identity. He is the ward in whose behalf this suit was instituted. In May, 1894, Annie Collins died leaving as her only heirs at law her two sons William H. Collins and Edward Collins. She had not disposed of any of her interest in the property left her by her husband. She left a will by which she devised unto her son William H. Collins the sum of $5, and devised unto her son Ned S. Collins (Edward Collins) the residue of her estate; and provided for the settlement of her estate by her executor without intervention of the superior court, except to admit her will to probate. It is not suggested here that the $5 bequest to William H. Collins is now a charge upon the land involved. The will was duly admitted to probate in the superior court for King county on June 8, 1894. No further court proceedings were had in the administration of the estate of Annie Collins. In 1891 letters of administration were granted by the superior court for King county upon the estate of Dinah Sour, who had died in 1876. On June 14, 1899, the superior court for King county rendered a final decree of distribution in the matter of the estate of Dinah Sour. This it will be noticed was long after the death of Stephen Collins, her son, and long after the death of Annie Collins, his wife, and also long before Edward Collins, the second son of Annie Collins, became of age; he being then only 13 years old. This decree purported to distribute the whole of the estate of Dinah Sour to William H. Collins, son of Stephen and Annie Collins, both deceased, and James Fares adopted son of Lucinda Gordon, deceased. It was rendered evidently upon the theory that the court had jurisdiction to determine who were entitled to the property as heirs of the deceased heirs of Dinah Sour; the heirs of Dinah Sour (Stephen Collins and Lucinda Gordon) having died after the death of Dinah Sour and before distribution. While this decree recites that due notice was given of the hearing as required by law, it is conceded that at the time of the distribution Edward Collins had no general guardian, and that no guardian was appointed to appear for him to take care of his interest upon that hearing. Barto and wife claim title as successors in interest of James Fares and William H. Collins.

It is contended by learned counsel for appellants that the decree of distribution in the estate of Dinah Sour is a final determination to who were entitled to the property left by her, and that Edward Collins is bound by that decree. Passing the question of the power of the court in that proceeding to determine any person's rights, other than the rights of the heirs of Dinah Sour (Stephen Collins and Lucinda Gordon), in view of the fact it was her estate that was being administered and distributed and not the estate of her deceased heirs, let us inquire as to whether or not the court had jurisdiction over the minor, Edward Collins. The matter of acquiring jurisdiction upon distribution of an estate of deceased persons is provided for by section 6357, Ballinger's Ann. Codes & St. (Pierce's Code, § 2681), as follows: 'The decree may be made on the application of the executor or administrator, or of any person interested in the estate, and shall only be made after notice has been given in the manner required in regard to an application for the sale of land by an executor or administrator. The court may order such further notice to be given as it may deem proper.' Turning to the sections relating to the manner of acquiring jurisdiction upon an application to sell real estate, we find the following: Section 6258 provides that, upon the filing of the application, the court shall 'make an order directing all persons interested to appear at a time and place specified, * * * to show cause why an order shall not be granted, * * * to sell, * * *' etc. Section 6259 provides: 'A copy of such order to show cause shall be personally served on all persons interested in the estate at least ten days before the time appointed for the hearing of the petition, or shall be published at least four successive weeks in such newspaper as the court shall order. * * *' Section 6261 provides: 'If any of the devisees or heirs of the deceased are minors, and have a general guardian in the county, the copy of the order shall be served on the guardian. If they have no such guardian, the court shall, before proceeding to act on the petition, appoint some disinterested person their guardian for the sole purpose of appearing for them, and taking care of their interests in the proceedings.' In the case of Ball v. Clothier, 34 Wash. 299, 310, 75 P. 1099, this court held that the superior court was without jurisdiction to order a sale so as to divest a minor of his interest in the land, unless jurisdiction over the minor was acquired as provided by section 6261. These statutory provisions and the construction placed upon them renders it plain that the interest of a minor cannot be affected by a decree of distribution, unless jurisdiction over the minor has been acquired by service upon his general guardian, or, if he have no such guardian, then by the appointment of a guardian to take care of his interest in the proceeding. We have seen that Edward Collins had no general guardian, nor was any guardian appointed to represent him at the time of rendering of the decree of distribution of the estate of Dinah Sour. In view of the fact that Edward Collins did not inherit from Dinah Sour, was it necessary that the court acquire jurisdiction over him in the manner provided by these sections of the statute? We think it was. Assuming that the court had jurisdiction over the estate of Dinah Sour and that the decree was rendered upon due publication of an order to show cause, it no doubt would have become final as to Stephen Collins, the son and heir of Dinah Sour, he being of full age, had he then been alive. Palmquist v. Sagstad, 106 P. 1116. However, upon distribution, it is as necessary to acquire jurisdiction over an heir or devisee of a deceased heir or devisee of the person whose estate is being distributed as it is to acquire jurisdiction over such deceased heir or devisee if he were alive. Or course, we have reference only to deceased heirs or devisees who die after the death of the person whose estate is being distributed. 18 Cyc. 646; 2 Woerner's Am. Law of Administration (2d Ed.) § 561; Distributees of Hall v. Andrews, Adm'r, 17 Ala. 40; Morris v. Virden, 57 Ark. 232, 21 S.W. 223.

Upon the same principle we think it was necessary to acquire jurisdiction over the minor Edward Collins, who took title as an heir and devisee of his mother Annie Collins, deceased who took title as the widow of Stephen Collins, deceased, who took title as an heir of his mother, Dinah Sour, deceased, whose estate was attempted to be distributed. We are of the opinion that the decree was not a conclusive adjudication upon the rights of Edward Collins. We do not want to be understood as expressing any opinion upon the power of the superior court in decreeing distribution of an estate of a deceased person to determine the respective rights of heirs or devisees, among themselves, of deceased heirs or devisees of a deceased person, whose estate is being distributed. The fact that the court in no event had jurisdiction over Edward Collins is sufficient ground for our holding...