In re Doane's Estate

• Decision Date: 24 July 1911
• Court: Washington Supreme Court
• Parties: In re DOANE'S ESTATE.

116 P. 847

64 Wash. 303

In re DOANE'S ESTATE.

Supreme Court of Washington

July 24, 1911

Department 1. Appeal from Superior Court, Spokane County; J. D. Hinkle Judge.

In the matter of the estate of George B. Doane, deceased. From orders vacating a decree settling his final account as to compensation, John M. Bunn, executor, appeals. Orders reversed and set aside.

Graves Kizer & Graves, for appellant.

Tolman & King, for respondent.

PARKER J.

By this appeal John M. Bunn, executor of the estate of George B Doane, deceased, seeks to have reversed certain orders of the superior court for Spokane county vacating the decree of that court settling his final account in so far as his compensation as executor was by that decree allowed, and fixing his compensation at a less sum.

In November, 1907, appellant was granted letters testamentary under the will of George B. Doane, deceased, by the superior court for Spokane county. Appellant proceeded with the administration of the estate, and on March 16, 1910, the affairs of the estate being ready for final settlement, he filed his final report and account as executor, which after setting forth a large number of items of receipts and expenditures concluded as follows: 'Probable cost of closing said estate, including executor's fees, $2,500.00. Balance on hand to be distributed in cash, $2,552.49. Wherefore your petitioner prays that the above account be approved.' The court thereafter rendered its decree settling this account and allowing compensation to appellant as executor as follows: 'The final account of John M. Bunn, executor of the estate of George B. Doane, deceased, herein rendered and presented on the 16th day of March, 1910, coming on regularly to be heard on this 5th day of April, 1910, and proof having been made to the satisfaction of the court that the clerk had given notice of the settlement of said account in the manner and for the time required by law, and heretofore directed by this court, and no objections being filed thereto, and it appearing that said account is correct; and it further appearing to the court that the sum of $2,500 is a reasonable amount to be allowed to the executor as his fee in the above-entitled estate, and that the same shall also include his fee as administrator de bonis non with the will annexed of the estate of Fannie M. Doane, deceased, and also as attorney's fees for both the said estates of Fannie M. Doane, deceased, and George B. Doane, deceased: It is hereby ordered, adjudged and decreed that the said final account of said executor be and the same is hereby allowed and approved and settled, and that said executor be allowed the sum of $2,500, as above stated, and is hereby authorized to retain the same from the money on hand in said estate. Done in open court this 5th day of April, 1910.' In explanation of the reference in the decree to the estate of Fannie M. Doane it may be noticed that it appears that Fannie M. Doane was the wife of George B. Doane; that she died before George B. Doane; that appellant was also administrator of her estate at the same time; that the whole of the estate of Fannie M. Doane descended to George B. Doane; and that the estate of Fannie M. Doane was apparently not formally finally settled as such. It is not suggested that there was any want of due statutory notice to all persons interested of the time of the hearing upon which this decree of settlement was rendered. We must then proceed upon the theory that notice was given as therein recited. On May 2, 1910, Jeanette A. Doane, a resident of Massachusetts, a sister of decease, a residuary legatee under his will, and the petitioner who thereafter sought and procured the vacation of the decree of settlement, signed a receipt under protest for property and money coming to her from the estate under the will, wherein it is recited, in substance, that the same was in full settlement of all the property and money so coming to her, which receipt was filed in the cause. On June 14, 1910, she filed in the cause her petition praying for the vacation of the decree settling the final account of appellant as executor, in so far as it allowed his compensation, that his compensation be reduced to the sum of $703.08, and that he be directed to return to the estate the balance of the $2,500 allowed him by that decree. The substance of the facts alleged upon which she claimed the relief prayed for is that the total value of the estate was only $16,576.92; that no extraordinary service was required of or rendered by appellant in the administration of the estate; that he was lawfully entitled to no more than the statutory commission upon the value of the estate as his compensation amounting only to the sum of $703.08; that all of the $2,500 allowed appellant had been received by him; and 'that your petitioner had no notice of the filing of said final report or of the time of hearing thereon, or of the allowance thereof, or of the fee claimed by him or allowed to him as aforesaid until April 12, 1910.' No other facts are alleged tending to show fraud on the part of appellant in procuring the decree of settlement, nor any excuse on the part of petitioner for not appearing at the hearing, nor any excuse for not appealing from the decree of settlement. Appellant, being cited to respond to this petition, demurred thereto for want of sufficient facts to warrant the vacation of the decree of settlement. This demurrer being overruled, he thereupon answered the petition, pleading the regularity of the rendering of the decree, that the same is a final adjudication of the matters sought to be again litigated by the petitioner, and that the allowance made to him as compensation by the decree is reasonable in amount. The matter then came on for hearing upon the issues thus raised. No evidence was offered in behalf of petitioner, and appellant, relying largely upon the former adjudication by the decree, offered but little evidence.

This evidence indicates in a very general way his work in connection with the two estates, and also to the payment to petitioner and other residuary legatees of the sums coming to them under the will. Upon this hearing, the court vacated that portion of the decree allowing appellant's compensation as executor, but made no order fixing his compensation nor of distribution. Thereafter the petitioner and another residuary legatee under the will petitioned the court to fix the compensation of appellant as executor at $703.08, and direct the distribution of the balance of the $2,500 theretofore allowed to and retained by him to the residuary legatees under the will. To this petition appellant made substantially the same answer and defense as to the original petition to vacate the decree. These defenses being deemed insufficient by the court, without receiving further evidence, it made an order fixing the compensation of appellant as executor at the sum of $703.08, and directing him to distribute to the residuary legatees the balance of the $2,500 theretofore allowed and retained by him. The trial court settled a statement of facts which purported to contain all of the material facts in connection with the vacating of the decree and the order of allowance and distribution made thereafter. This has enabled us to see what material facts were before the court, if any, other than appear in the petition to vacate the decree. We mention this to show that in determining the rights of the parties here we have to resort almost wholly to the facts stated in that petition. John M. Bunn has appealed from these orders, contending, in substance, that the decree of April 5, 1910, settling his final account and determining his compensation as executor, was a final adjudication upon those questions, that such decree was not subject to vacation upon the facts presented to the court by the petitioner, and that there are no facts here shown which entitle the petitioner to have that decree reviewed other than by appeal therefrom to this court.

A decree settling a final account of an executor or an administrator when rendered upon due statutory notice, as this decree was so rendered, has all of the force, effect, and finality of any other final judgment rendered by a superior court. This is not only evident from the very nature of the statutory notice and procedure provided for and leading up to the rendition of such a decree; but seemingly, for the purpose of removing all doubt upon the question and putting probate decrees of this nature upon the same firm basis as to their finality as all other final judgments are, our statute has since early territorial days expressly provided that: 'The settlement of the account and the allowance thereof, by the court or upon appeal, shall be conclusive against all persons in any way interested in the estate * * *' excepting certain persons under disability. Laws 1854, p. 297, § 182; Rem. & Bal. Code, § 1566. As a general proposition of law this is not seriously controverted by respondents; but they argue that the question of appellant's compensation was not so involved in the issues arising upon the final settlement as to render the decree final upon that question as against them. They seem to rely upon the allegations in the petition to vacate the decree: (1) That the petitioner had no notice of the filing of the report or of the hearing thereon; and (2) that the petitioner had no notice of the fee claimed by appellant or allowed to him until after the decree was rendered. As to the first, it means no more than that she did not know of the time of the hearing, in view of the conceded fact that legal notice of the hearing was given.

This notice made the petitioner bound to know such facts in the absence of some legal excuse which she has not...