In re Chellew's Estate

• Decision Date: 10 December 1923
• Docket Number: 18189.
• Citation: 221 P. 3,127 Wash. 382
• Court: Washington Supreme Court
• Parties: In re CHELLEW'S ESTATE. v. WHITE. CHELLEW

221 P. 3

127 Wash. 382

In re CHELLEW'S ESTATE.

CHELLEW v. WHITE.

No. 18189.

Supreme Court of Washington

December 10, 1923

Department 1.

Appeal from Superior Court, Lewis County; W. A. Reynolds, Judge.

In the matter of the estate of Samuel Chellew, deceased. Petition by Vivian Chellew praying that Fannie E. White, administratrix de bonis non of the estate of Samuel Chellew, deceased, be required to account and distribute certain property. From an order dismissing the petition, he appeals. Reversed and remanded, with directions.

O. J. Albers, of Chehalis, for appellant.

A. E Rice, of Chehalis, for respondent.

PARKER J.

This is an appeal by Vivian Chellew from an order of the superior court for Lewis county sustaining a motion to dismiss his petition filed in the matter of the estate of Samuel Chellew deceased, pending in that court, wherein the prays that Fannie E. White, the administratrix de bonis non of the estate of Samuel Chellew, deceased, be required to account for the remaining property of the estate, and that such property be distributed to him as the sole heir of Samuel Chellew, deceased. The motion to dismiss appellant's petition was made by the administratrix and sustained by the superior court upon the theory that the petition did not show any cause for relief, taking into consideration the record of the probate proceedings. In other words, the motion was treated as a demurrer to the petition; it being deemed amplified by the record in the probate proceedings.

The controlling facts, as we view them, alleged in appellant's petition and found in the record of the probate proceedings, may be summarized as follows: On December 8, 1916, Samuel Chellew, then a resident of Lewis county, in this state, made his last will and testament, the following provisions of which are the only ones of any moment in our present inquiry:

'I give and bequeath unto my executors hereinafter named all the rest and residue of my property of whatsoever kind and nature, wherever situate, to be handled and used by them as trustees, as they deem best, and to whom they may decide best, for the use of orphans and widows, whose homes are in the two parishes of St. Ives and Towednack, England, to be expended by them for the relief of worthy orphans and widows of the war with Germany.'

'Lastly, I hereby nominate and appoint S. C. White trustees and the executors of this, my last will and testament. * * *'

While this language seems to contemplate the appointment of more than one executor and trustee, it is to be noticed that the deceased actually appointed only one, to wit, S. C. White. On December 9, 1916, Samuel Chellew died in Lewis county leaving property in this state. On December 13, 1916, the will of deceased was duly proven and admitted to probate in the superior court for Lewis county, and the appointment of S. C. White as executor duly confirmed by that court. S. C. White entered upon his duties as executor, in due course giving notice to creditors and causing an inventory and appraisement of the property of the estate to be duly made and filed. On April 6, 1921, the estate being ready for settlement and distribution, in so far as its administration by the executor was concerned, upon due notice being given, an order and decree was duly entered, approving the executor's final account and making distribution of the property of the estate here in question, to S. C. White in trust for use by him as directed by the terms of the will. On June 5, 1922, S. C. White died. On October 9, 1922, Fannie E. White, widow of S. C. White, filed in the probate proceedings her petition for the appointment of herself as administratrix de bonis non of the estate of Samuel Chellew, deceased, alleging in part as follows:

'That at the time of the deceased of the said S. C. White the estate was not fully settled and distributed, and is not at this time, the particular omission being as follows: That there remains in the Barclay's Bank, Limited, at St. Ives, Cornwall, England, the sum of 266 pounds, 12 shillings, and 9 pence, which money had been placed there by S. C. White to be distributed to certain parties residing in England; that under the decree of distribution this money was distributed to S. C. White to be disposed of at his discretion, but, on account of failing health, he neglected to check this money out of the bank, and the same is now there on deposit to the credit of the estate of Samuel Chellew, deceased. That said money can only be removed from said bank by an order of the probate court having jurisdiction over the estate, and it is necessary to have an administrator appointed as successor to the deceased executor, and that your petitioner has an interest in said funds, and is a fit and proper person to be appointed as such administratrix.'

Following the giving of the usual notice, the superior court entered its order appointing Mrs. White administratrix de bonis non as prayed for by her, and we assume that she duly qualified by giving bond according to the order of her appointment, although the portion of the record before us does not affirmatively so show. On March 5, 1923, appellant filed in the probate proceedings his petition praying, in substance, that Mrs. White, as administratrix de bonis non, be required to account for all trust property of the estate remaining in the hands of S. C. White and undistributed at the time of his death, and that all of such property be distributed to petitioner as the sole surviving heir of Samuel Chellew, deceased; alleging as grounds therefor the several steps taken in the probate proceedings up to and including the appointment of Mrs. White as administratrix de bonis non; alleging the existence of the undistributed balance of the trust funds in the bank in England, as alleged in Mrs. White's petition for appointment as administratrix de bonis non; alleging upon information and belief the existence of other undistributed trust property in the hands of S. C. White, at the time of his death, of the approximate value of $10,000; and alleging that petitioner is a brother and the sole heir or Samuel Chellew, deceased, and as such is entitled to all of the undistributed trust property remaining in the hands of S. C. White at the time of his death, because of the lapse of the trust bequest to S. C. White in the will of Samuel Chellew, in so far as the property so bequeathed was undistributed by S. C. White at the time of his death. On March 12, 1923, Mrs. White as administratrix de bonis non moved the court for dismissal of appellant's petition, specifying several grounds therefor, such as to make her motion in effect a demurrer to the petition when read in the light of the probate proceedings. On April 4, 1923, this motion to dismiss appellant's petition was heard by the court and sustained, and an order entered accordingly finally dismissing the petition. This is the order here sought to be reversed.

We first inquire as to whether, if the allegations of appellant's petition as amplified by the record in the probate proceedings be true, there remained trust property in the hands of S. C. White at the time of his death now available to Fannie E. White as administratrix de bonis non of the estate of Samuel Chellew, deceased. The fact that there is such undistributed trust property seems settled by her own allegations in her petition for her appointment as administratrix de bonis non, in so far as the money on deposit in the bank in England is concerned; which allegations are also made in substance in appellant's petition for the distribution of such property to him as the sole heir of Samuel Chellew, deceased. It may be, however, upon the final hearing of Vivian Chellew's petition upon the merits, that is, upon the accounting of Mrs. White as administratrix, which he prays shall be now had, it will appear that this fund admitted by her to be in the bank in England is not available to her. This, however, is a matter for final determination upon the merits in her accounting, as is also the question of her accounting for any other undistributed trust property remaining in the hands of S. C. White as trustee at the time of his death. On these questions we hold that Vivian Chellew's petition, read in the light of the record in the probate proceedings, properly tenders questions of fact as to the existence of any undistributed trust funds in the hands of S. C. White at the time of his death and now available to Mrs. White as administratrix de bonis non of the estate of Samuel Chellew, deceased. There is manifestly no longer any necessity for delaying final accounting and distribution of such undistributed trust property, in so far as the payment of the debts of the estate are concerned, that matter having been settled by the previous decree of distribution. This is only an effort on the part of appellant to have expeditiously accounted for and distributed to him as the heir of Samuel Chellew, deceased, property which has reverted, as he claims, to the estate of Samuel Chellew, deceased, after a settlement and distribution of that estate in due course of administration. In other words, it is an effort on his part in substance to assert his inheritance right in property discovered as belonging to the estate after the close of an administration of the estate in due course, a right which is plainly contemplated may be asserted through further administration as provided by section 1550, Rem. Comp. Stat.

Assuming that there remained some trust property in the hands of S. C White at the time of his death undistributed by him under the terms of the will of Samuel Chellew, deceased, and that appellant is his heir, as we must now assume in view of the motion of the administratrix to dismiss Vivian Chellew's...