In re Christianson's Estate

• Decision Date: 31 December 1942
• Docket Number: 28800.
• Citation: 132 P.2d 368,16 Wn.2d 48
• Court: Washington Supreme Court
• Parties: In re CHRISTIANSON'S ESTATE. v. KERLEY et al. CHRISTIANSON

132 P.2d 368

16 Wn.2d 48

In re CHRISTIANSON'S ESTATE.

CHRISTIANSON v. KERLEY et al.

No. 28800.

Supreme Court of Washington

December 31, 1942

Department 2.

Proceeding in the matter of the estate of Augusta Christianson deceased, wherein Erick Christianson moved to vacate the decree. From an order sustaining the demurrers of Lillian Kerley and another, joint administratrix and administrator of the estate of said deceased, and Anna Anderson and others, to the motion, and dismissing the proceedings on the motion Erick Christianson appeals.

Order affirmed.

Appeal from Superior Court, Whatcom County; Hobart S. Dawson, judge.

C. A Lee, of Bellingham, for appellant.

Walter F. Fisher, Loomis Baldrey, Thomas & Keplinger, and Robert B. Sherwood, all of Bellingham, for respondents.

BLAKE Justice.

On June 18, 1941, after due notice, a decree of distribution was entered in the above-entitled estate. February 26, 1942, Erick Christianson, a nephew of deceased, filed a motion, supported by his affidavit, to vacate the decree. The motion was grounded upon subdivisions 4 and 7 of Rem.Rev.Stat., § 464--the former providing for the vacation of judgments for fraud practiced by the successful party; the latter, for 'casualty or misfortune preventing [a] party from prosecuting or defending; * * *.' A show cause order was issued, directed to interested parties, who appeared and interposed demurrers to the motion, the supporting affidavit, and the show cause order. The court sustained the demurrers, and entered an order dismissing the proceedings. From this order, the moving party appeals.

In substance, the affidavit in support of the motion to vacate the decree of distribution was based upon two alleged facts: (1) That the entire estate was distributed to two surviving sisters of the decedent to the exclusion of nieces and nephews--the children of a deceased brother and sister; and (2) that there was property belonging to the estate which had not been brought into the administration.

First. It is conceded that the decree of distribution was entered upon due notice. There are no allegations of extraneous fraud contained in the affidavit; that is, no representations were made to any of the nieces or nephews which led them to believe it was unnecessary for them to appear and protect their rights, or that they would participate in the estate under the decree of distribution.

The contention of appellant simply is that a fraud was practiced upon the court; that the decree entered is not the decree the court would have entered had it been advised of the existence of the children of decedent's deceased brother and sister. This contention, upon basically indistinguishable facts and circumstances, has been met and rejected by this court in many cases. In re Ostlund's Estate, 57 Wash. 359, 106 P. 1116; In re Doane's Estate, 64 Wash. 303, 116 P. 847; McDowell v. Beckham, 72 Wash. 224, 130 P. 350; Krohn v. Hirsch, 81 Wash. 222, 142 P. 647; Meeker v. Waddle, 83 Wash. 628, 145 P. 967; Davis v. Seavey, 95 Wash. 57, 163 P. 35; Coleman v. Crawford, 140 Wash. 117, 248 P. 386; O'Leary v. Bennett, 190 Wash. 115, 66 P.2d 875.

These decisions hold, in substance, that a decree of distribution entered upon due notice is, in the absence of extrinsic fraud, res judicata as to the rights of persons interested to participate in the estate. Farley v. Davis, 10 Wash.2d 62, 116 P.2d 263. In the leading case, In re Ostlund's Estate, supra, a decree of distribution was entered awarding all the property of the deceased to her husband under the terms of a will which failed to mention the testatrix's children. Holding the decree of distribution conclusive, the court said, 57 Wash. at page 364, 106 P. at page 1117:

'The contention that the court, in rendering the decree erroneously determined who was entitled to the property as distributee upon distribution of the estate of Elsie Ostlund goes only to the merits of the question then Before the court and is wholly foreign to the question of the jurisdiction of the court to determine who was entitled to the property then being distributed. * * *

'It is true the decree does not create the title in the distributees, but it is a solemn adjudication of who acquired the title of the deceased, and, if rendered upon due process of law, is final and conclusive upon that question. Its very object and purpose is to judicially determine who takes the property left by the deceased.'

What was said in Krohn v. Hirsch, supra, 81 Wash. at page 228, 142 P. at page 649, is peculiarly pertinent to the situation presented here: 'It seems quite clear to us that respondent did nothing to the prejudice of appellant Mattie Krohn's rights as an heir of James McCarthy if, in fact, she was such, unless it be held that respondent presented to the superior court, upon the distribution hearing, evidence which was not true touching the question of the nature of the property left by James McCarthy, and the question of who was entitled to take the same as heir and distributee. These questions, however, go to the merits of the very matter there in issue and to be decided by the court, and as to which appellant...