In re Brown's Estate

• Citation: 101 P.2d 1003,6 Wn.2d 215
• Decision Date: 25 April 1940
• Docket Number: 27713.
• Court: United States State Supreme Court of Washington
• Parties: In re BROWN'S ESTATE.

101 P.2d 1003

6 Wn.2d 215

In re BROWN'S ESTATE.

No. 27713.

Supreme Court of Washington

April 25, 1940

Department 2.

Proceeding in the matter of the estate of Fred R. Brown, a minor wherein Wilmon Tucker, as administrator with the will annexed of the estate of Sarah E. Smith, deceased, filed claim, and Sadie R. Brown, guardian, filed final account and petition for distribution. From an order denying the claimant's motion for revision of a court commissioner's decree approving the final account and petition for distribution the claimant appeals.

Remanded with directions to modify the decree, and decree affirmed as modified.

Appeal from Superior Court, Yakima County; Dolph Barnett, judge.

Allen Froude & Hilen and Rummens & Griffin, all of Seattle, and P.J. Gallagher and George B. Guthrie, both of Portland, Or., for appellant.

Bonsted & Nichoson, of Yakima, and Poe, Falknor, Emory & Howe, of Seattle, for respondent.

GERAGHTY Justice.

This is an appeal by Wilmon Tucker, as administrator with the will annexed of the estate of Sarah E. Smith, deceased, from an order of the superior court of Yakima county denying appellant's motion for revision of a court commissioner's decree approving a guardian's final account and petition for distribution.

Sadie R. Brown, March 6, 1934, was appointed guardian of the person and estate of her son, Fred R. Brown, a minor eighteen years of age. The minor's estate, as inventoried, was appraised at $212,705. At the time of her appointment, the guardian's bond was fixed at $10,000, and later was increased to $110,000. Appellant, as administrator, filed a claim with the guardian alleging that Reese B. Brown, father of Fred R. Brown, had received large sums of money and securities in a fiduciary capacity from Sarah E. Smith, for which he had not accounted; that property and large sums of money belonging to her had been taken by Reese B. Brown in the name of his son, Fred R. Brown; and that all the money and property standing in the name of the son or his estate, whether inventoried or not, rightfully belonged to the estate of Sarah E. Smith. Appellant prayed, among other things, that an accounting be had and that all of the property and money standing in the name of Fred R. Brown be decreed to belong to the estate of Sarah E. Smith and impressed with a trust in favor of the appellant as its administrator.

On the guardian's rejection of the appellant's claim, he instituted an action in the superior court of Yakima county against Sadie R. Brown, individually and as guardian of her son's estate, the Guaranty Trust Company, as administrator of the estate of Reese B. Brown, deceased, and Fred R. Brown, to recover, as property belonging to the Sarah E. Smith estate, all of the assets of the estates of Reese B. Brown and Fred R. Brown.

The defendants in that action pleaded that all of the property or money received by Reese B. Brown from Sarah E. Smith had been given to him by her as an absolute gift.

March 26, 1938, the superior court of Yakima county decided the issues in that action adversely to the appellant's contention and entered an order of dismissal of the action. On appeal to this court, it was concluded that Mrs. Smith had turned over all of her property to Reese B. Brown in the course of a fiduciary relationship. The judgment was reversed and the cause remanded for further proceedings not inconsistent with what was said in the opinion. Tucker v. Brown, 199 Wash. 320, 92 P.2d 221. That action will hereafter be referred to as the Tucker suit.

While the Tucker suit was pending in the court below, and on November 13, 1936, Fred R. Brown became of legal age, and, on December 17, 1936, the guardian filed her first and final account in his estate, and petitioned for her discharge. In her account, she recited the pendency of the Tucker suit and the costs incurred in its defense and prayed for an allowance for her attorneys' fees and expenses, as well as compensation for her own services as guardian.

The account and petition came on for hearing Before a court commissioner. After denial of a motion made by the appellant that the hearing be postponed pending the determination of the Tucker suit, the commissioner heard the testimony of the guardian with reference to her services and of her attorneys in respect to the nature and value of their services. At the close of the hearing, the commissioner entered a decree approving the guardian's account and directing payment of the following sums: To the guardian, for her services in the administration of the trust, $15,000; to Bonsted and Nichoson, as full compensation for legal services, mainly in defending the interest of the ward's estate in the Tucker suit, $15,000; to Poe, Falknor, Falknor, and Emory, as the ward's share of the fee paid to that firm for services in the Tucker suit, $2,000; and to the Guaranty Trust Company, as administrator of the Reese Brown estate, $5,000, being the ward's proportionate share of the expense incurred in defending the Tucker suit. Finally, the guardian was directed to distribute to Fred R. Brown all of the residue of his estate, 'subject, however, to the pendency of the aforesaid action * * * wherein Wilmon Tucker, as administrator with the will annexed of the estate of Sarah E. Smith, deceased, is plaintiff, and Sadie R. Brown, Fred R. Brown, et al., are defendants * * * and subject to all of the rights of plaintiff and all of the liabilities of the defendants, Sadie R. Brown, as guardian of the person and estate of Fred R. Brown, a minor, and of Fred R. Brown, individually, and his estate flowing from or arising out of said action; * * *'

The appellant, by motion, applied to the superior court for a revision of the commissioner's decree. After argument, the court made an order revising the decree in some respects not material here, but approving the allowances made to the guardian for her own fees, for attorneys' fees, and the contribution to the expense incurred by the administrator of the Guaranty Trust Company, administrator of the Reese Brown estate, in defending against the Tucker suit. The order also approved the provision embodied in the commissioner's decree for immediate distribution of the residue of the guardianship estate to the ward.

On entry of the foregoing order, the appellant, in open court, gave notice of appeal. An appeal bond was timely filed, and a proposed statement of facts was served and filed May 13, 1937. Within the time allowed, the respondents served and filed their proposed amendments to the statement. Nothing further was done to settle the statement until after final disposition of the Tucker suit on appeal. The opinion in that case was filed June 22, 1939, and, on July 6th thereafter, the appellant gave notice to the respondents of his application for settlement of the statement. The statement was settled and certified July 12th, and appellant's opening brief served July 26, 1939. Before certifying the statement, the court denied a motion interposed by the respondents to dismiss the application, for the reason that it had not been made within a reasonable time, and that the appellant should be held to have abandoned his appeal.

The respondents now move in this court for dismissal of the appeal and affirmance of the judgment on the grounds urged below and the further ground that the appellant's brief was not timely filed.

By giving his notice of appeal, filing his bond, and serving and filing his proposed statement of facts, the appellant complied with the essential jurisdictional requirements. When the matter of the certification of the statement was Before the trial court, appellant presented the affidavit of one of his counsel to the effect that there had been an 'arrangement' between counsel for the parties for holding further steps on the appeal in abeyance until after the determination of the issues in the Tucker suit. That such an arrangement was made was denied in an affidavit filed by respondents, and, in any event, it was not in writing as required by rule of court. It appears from written stipulations in the record that, after service of appellant's brief, respondents sought, and were given, two extensions of time for serving their answering brief.

Under the circumstances, the respondents were in no way prejudiced by the delay of the appellant in applying for settlement of the statement of facts. The trial court did not abuse its discretion in certifying the statement. The motion in this court to strike and dismiss is without merit and should be denied.

The appellant's assigned errors are: (a) The allowance of attorneys' fees and expenses in contesting the Tucker claim and directing that they be paid out of property claimed by him; (2) the ordering that the property in the guardian's possession be delivered to the ward; and (3) the allowing of $15,000, or any portion thereof, as fees to the guardian.

Appellant takes the position throughout his brief that the effect of the decision in the suit of Tucker v. Brown, supra, was to declare all of the property in the guardianship estate of Fred R. Brown to be held in trust for appellant, and he thus states the question involved: 'We therefore have for consideration a rather simple question of whether or not a guardian, holding trust property as a successor trustee, can use the property in her possession, belonging to such trust estate, to pay her own fees and the fees and expenses of her attorneys incurred in an unsuccessful defense of a suit by the true owner to recover such property.'

Actually the status of the property in the guardianship estate, with respect to the appellant's claim, has not yet been determined. It may be trust property in whole or in part, or it may not be. The question,...