In re Brown's Estate, 28204.

• Decision Date: 07 March 1941
• Docket Number: 28204.
• Citation: 7 Wn.2d 717,110 P.2d 867
• Court: Washington Supreme Court
• Parties: In re BROWN'S ESTATE. v. GUARANTY TRUST CO. TUCKER

110 P.2d 867

7 Wn.2d 717

In re BROWN'S ESTATE.

TUCKER v. GUARANTY TRUST CO.

No. 28204.

Supreme Court of Washington

March 7, 1941

Department 2.

Proceeding in the matter of the estate of Reese B. Brown, deceased, by Wilmon Tucker, as administrator with the will annexed of the estate of Sarah E. Smith, deceased, against the Guaranty Trust Company, a corporation, as administrator de bonis non with the will annexed of the estate of Reese B. Brown deceased, wherein the Guaranty Trust Company petitioned to be permitted to actively participate in the litigation and accounting in action between Wilmon Tucker, as administrator against Sadie R. Brown and others. From an adverse order Wilmon Tucker, as administrator, appeals.

Judgment in accordance with opinion.

Appeal from Superior Court, Yakima County; Arthur McGuire, judge.

Allen Froude & Hilen and Rummens & Griffin, all of Seattle, for appellant.

Cheney & Hutcheson and Walter J. Robinson, Jr., all of Yakima, for respondent.

JEFFERS 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 for Yakima county, Honorable Arthur McGuire, Judge, sitting in probate, authorizing and directing Guaranty Trust Company, as administrator de bonis non with the will annexed of the estate of Reese B. Brown, deceased, upon its own request for such an order, to actively participate in the litigation and accounting in the case of Tucker v. Brown, being cause No. 27543 of the superior court for Yakima county.

The matter came on for hearing Before the court on the petition of Guaranty Trust Company, as such administrator, at which hearing counsel for Mr. Tucker, administrator with the will annexed of the estate of Sarah E. Smith, were present, and objected to the order entered. After a hearing and the filing of briefs by respective counsel, the court entered an order, the material provisions of which are as follows:

'It is hereby ordered, adjudged and decreed that the petitioner Guaranty Trust Company, a corporation, as administrator de bonis non with the will annexed of the estate of Reese B. Brown, deceased, shall actively participate in the litigation and accounting in the cause entitled 'Wilmon Tucker as administrator with the will annexed of the estate of Sarah E. Smith, Deceased v. Sadie R. Brown et al.,' being cause No. 27543 of the superior court of the state of Washington for Yakima county. * * *

'It is further ordered that in order to comply with the above mentioned order, said Guaranty Trust Company * * * is hereby authorized and empowered to employ attorneys and to incur any and all reasonably necessary expenses for witnesses, traveling expenses, stenographic services, subpoenas, depositions and any other expense that may be necessary to properly perform the above and foregoing order.

'It is further ordered that subject to the future determination of the reasonableness and propriety of such attorney's fees, costs and expenses, that all of such attorney's fees, costs and expenses shall be an expense of administration of the property now or hereafter coming into the possession or under the control of such administrator, and the administrator shall be reimbursed from such property, regardless of whether or not said property is hereafter determined to be the property of the estate of Reese B. Brown or trust property of Wilmon Tucker as administrator with the will annexed of the estate of Sarah E. Smith, deceased.' (Italics ours.)

The above order was entered on August 5, 1940, and this appeal followed.

In the case of Tucker v. Brown, 199 Wash. 320, 92 P.2d 221, Wilmon Tucker, as administrator of the Sarah E. Smith estate, brought a suit in equity against Sadie R. Brown, Guaranty Trust Company, as administrator, and others, for the purpose of establishing that part or all of the property passing to respondent, as administrator de bonis non with the will annexed of the estate of Reese B. Brown, was impressed with a trust in favor of Sarah E. Smith. In that case, we decided that during his lifetime Reese B. Brown had received an unascertained amount of property from Sarah E. Smith; that this property was held by Brown in trust for Sarah E. Smith; and that such property had not been received by Brown as a gift. The case was remanded to the lower court for further proceedings.

Acting in accordance with its understanding of the remittitur, the lower court, on September 13, 1939, entered an interlocutory decree and judgment upon the remittitur, which provides as follows:

'That in 1929 and 1930 Reese B. Brown received from Sarah E. Smith, as trustee for her under the express trust substantially all of the property then owned by her (a partial list of which is set forth in paragraph 4 hereof) and that during the life of Sarah E. Smith said property received by Reese B. Brown as trustee was not returned to said Sarah E. Smith and no accounting of said trust was made to her, and no accounting has been made by Reese B. Brown or by the administratrix, administrator, executrix or administrator de bonis non with the will annexed, of his estate since the death of said Sarah. E. Smith. * * *

'That an accounting between the parties hereto with respect of all of the property owned by said Sarah E. Smith and received by said defendants or any of them, or by said Reese B. Brown, be had at a trial in this cause at such time as the matter may be regularly assigned for trial by the above entitled court. At said trial the evidence heretofore introduced in this action shall be considered and may be supplemented by such evidence as the parties hereto shall produce. The nature and extent of plaintiff's claim against the defendants and the property in their possession because of the fact that said trust property has not been fully accounted for and returned to the plaintiff, shall be determined at the trial to be had as herein provided.'

Two assignments of error are made: (1) That the court erred in assuming jurisdiction as a probate court over the trust property of appellant. (2) That the court erred in ordering that the attorney's fees and expenses of respondent in defending or participating in the accounting in Tucker v. Brown be paid out of trust property of appellant.

Much of the activities of the parties involved in this proceeding, prior to the application for the order entered herein, are set out in the briefs, particularly the acts of Wilmon Tucker, as administrator with the will annexed of the estate of Sarah E. Smith, deceased. We do not deem it necessary to a decision of the questions raised herein to discuss such activities, other than as set forth in this opinion.

Respondent many times in its brief states that it has not yet been determined what, if any, of the property now held by respondent is trust property of appellant, and that therefore, the basis of appellant's contentions being wrong, its conclusions based thereon are wrong. Admitting, as we do, that it has not yet been determined what, if any, of the property now held by respondent is trust property of appellant, yet the order made by the trial court recognizes that some or all of the property above referred to may be determined to be trust property of appellant, and much of the argument of respondent, to the effect that if this order is not upheld, respondent may be forced to pay from its own funds the expenses of participating in this accounting, is certainly based upon the assumption that the property now in its possession may be determined to be trust property; otherwise respondent would not have been concerned with having the order provide for payment other than from the assets of the Reese B. Brown estate.

One of appellant's contentions is that the heirs of Reese B. Brown (Mrs. Brown and her son Fred) have disclaimed all interest in and to any of the property involved herein; that appellant has agreed that the few creditors of the Reese B. Brown estate will be paid proportionately with appellant, regardless of the outcome of the case of Tucker v. Brown; and that therefore there is no necessity for any defense on the part of respondent in the accounting proceedings. Whether the heirs of Reese B. Brown, deceased, or the creditors of the Brown estate, have or have not disclaimed any interest in the accounting proceedings, we deem immaterial to the question here involved.

Appellant contends that the court erred in assuming jurisdiction as a probate court over the trust property of appellant. It is not claimed that the lower court did not have jurisdiction of the parties. However, appellant contends that such property as may be eventually determined to be trust property cannot be considered as assets subject to administration, as part of the estate of Reese B. Brown, and that, therefore, in so far as the order purported to affect the ultimate disposition of these trust funds, it was made without jurisdiction, because the probate court is limited to an in rem jurisdiction over matters which may properly be administered as part of the estate.

Granting that funds which Reese B. Brown held as trustee are not subject to administration as part of his estate, it does not follow that the order appealed from was made without jurisdiction.

In the recent case of Golden v. McGill, 3 Wash.2d 708, 102 P.2d 219, 222, we very exhaustively discussed the jurisdiction of a superior court sitting in probate, and therein reviewed many of our former decisions. In the cited case we quoted from Bayer v. Bayer, 83 Wash. 430 145 P. 433, as follows: "Under the Constitution, the superior court is a court of general jurisdiction. It has jurisdiction of equity cases, actions at law, and proceedings in probate. * * * It...