In re Enos' Estate

• Decision Date: 12 May 1914
• Docket Number: 11,738.
• Citation: 79 Wash. 583,140 P. 675
• Court: Washington Supreme Court
• Parties: In re ENOS' ESTATE. v. HAMBLEN et al. ENOS

140 P. 675

79 Wash. 583

In re ENOS' ESTATE.

ENOS v. HAMBLEN et al.

No. 11,738.

Supreme Court of Washington

May 12, 1914

Department 2. Appeal from Superior Court, Spokane County; J. Stanley Webster.

In the matter of the estate of John Enos, deceased. Petition by Susan Enos against Lawrence R. Hamblen, as executor, etc and others to be declared the wife of the deceased. From a judgment dismissing the petition, petitioner appeals. Affirmed.

Cannon, Ferris & Swan, of Spokane, O. J. Bandelin of Sandpoint, Idaho, and W. E. Southard, of Wilson Creek, for appellant.

W. S Gilbert, of Spokane, for respondents.

MOUNT J.

The appellant in this action claims to be the lawful wife of John Enos, deceased, and, as such wife, has a community interest in the property left by the deceased. It appears that John Enos, commonly known as 'Portuguese Joe,' died on or about the 30th day of May, 1911. He left an estate consisting of real and personal property in Spokane county of considerable value. Prior to his death he made a will, by the terms of which he left the bulk of his property to his wife Mary Enos. Thereafter, on the 12th day of July, 1911, the will was admitted to probate in the superior court for Spokane county, and Lawrence R. Hamblen was duly appointed as executor of the will.

Thereafter on January 30, 1913, the appellant filed a petition in the superior court for Spokane county, in the matter of the estate of John Enos, deceased, alleging that she was the lawful wife of the testator during his lifetime; that there were born to her and the said John Enos three sons, two of whom died while young, and that the third son was supposed to be living, but his whereabouts was unknown to the appellant; that at the time of his death John Enos left certain property, describing it, in Spokane county, of the appraised value of $137,000. She prayed for a citation and a hearing upon her petition, and that, upon such hearing, she be adjudged to be the lawful wife of John Enos, deceased.

The executor of the estate, and others who were interested therein, appeared in answer to the petition. They denied that the appellant was the wife of John Enos, deceased. When the cause came on for trial, a jury was demanded by the petitioner. This demand was resisted by the executor. Upon that application it was conceded by counsel for the petitioner that it was discretionary with the trial court whether a jury should be called, and that the verdict of a jury would be advisory only. The court thereupon called a jury, and the cause was tried. The only question submitted to the jury was whether the appellant was ever legally married to the deceased, or was his wife. At the conclusion of the trial, the jury found that the appellant and the deceased were lawfully married. Upon motion of the respondents, the court declined to adopt the verdict of the jury, concluded upon the evidence that there was no lawful marriage, and dismissed the proceedings. This appeal is prosecuted from that order.

The appellant assigns that the court erred in disregarding the verdict of the jury, in refusing to enter a judgment thereon, and in dismissing the petition. Voluminous briefs have been filed in the case. The appellant argues strenuously that she was entitled to a jury as a matter of right, and that the verdict of the jury is binding upon the court, and not advisory merely. The statute (Rem. & Bal. Code, § 314) provides: 'An issue of fact, in an action for the recovery of money only, or of specific real or personal property shall be tried by a jury, unless a jury is waived, as provided by law. * * *'

Section 315 provides: 'Every other issue of fact shall be tried by the court, subject, however, to the right of the parties to consent, or of the court to order, that the whole issue, or any specific question of fact involved therein, be tried by a jury. * * *'

These statutes seem to us plain and unequivocal. Where there is an issue of fact in an action for the recovery of money or of specific real or personal property, that issue must be tried to a jury, unless a jury is waived. It is plain, we think, that this is not an action of the kind there mentioned. The question in this case is simply whether the appellant was the lawful wife of John Enos during his lifetime. If that question is determined in the affirmative, then she is undoubtedly entitled to her community interest in his estate, after the debts and costs of administration are paid. Rem. & Bal. Code, §§ 1366, 1370, 1534; Ryan v. Fergusson, 3 Wash. 356, 28 P. 910; In re Guye's Estate, 54 Wash. 264, 103 P. 25, 132 Am. St. Rep. 1111.

But this action cannot be said to be an action for the recovery of specific property, either real or personal. It is simply to determine the question whether the appellant is the widow of the deceased. The case of Filley v. Murphy, 30 Wash. 1, 70 P. 101, extensively quoted from and apparently relied upon by the appellant, is not an authority upon the question that this is an action for the recovery of specific real or personal property. That clearly was such an action. There the administrator sought to recover from an executor who had been deposed certain personal property belonging to the estate. We held in that case that it was an action for the recovery of specific property, and that the issues were triable to a jury. But this is not such an action.

The appellant argues at length that she is not claiming the property in question by inheritance or as an heir, but is asserting title to property which she owns to the same extent and in the same manner as the deceased owned it. We think it makes little difference in this case whether she claims a community interest as one of the community, or whether she claims as an heir. She is, in either event, not entitled to possession until after the administration is closed upon the estate. As we have seen above, the statute requires the whole estate to be administered upon, and, while the title vests in the heirs, or those entitled thereto immediately upon the death of the testator, neither the heirs...