In re Hoscheid's Estate
| Citation | 78 Wash. 309,139 P. 61 |
| Court | United States State Supreme Court of Washington |
| Decision Date | 28 February 1914 |
| Parties | In re HOSCHEID'S ESTATE. v. BARTHOLET et al. HOSCHEID |
Department 1. Appeal from Superior Court, Kittitas County; Ralph Kauffman, Judge.
In the matter of the estate of Nicholas Hoscheid, deceased. Petition by Susanne Hoscheid against Matthias Bartholet, executor, and others to set aside probate proceedings, for administration to close the estate, and that the petitioner be adjudged the owner of an undivided one-half of the estate. Decree for petitioner, and defendants appeal. Reversed and remanded with direction to dismiss the petition.
John B. Davidson, of Ellensburg, for appellants.
John H McDaniels, of Ellensburg, for respondent.
This is an appeal from an order setting aside a decree of distribution of the estate of Nicholas Hoscheid, deceased and declaring that he died intestate, and distributing his estate accordingly. The record discloses material facts as follows: On May 7, 1889, Nicholas Hoscheid, then a widower without children or other descendants, made a will bequeathing and devising all of his property to his mother, his brothers and other collateral kindred, and to certain relatives of his deceased wife. Thereafter he went to Minnesota, and on July 21, 1891, married Susanne Hoscheid, the petitioner in this proceeding. In 1895 he left the petitioner, shortly afterward returning to Kittitas county, Wash., where he died on February 4, 1897. The petition for probate of the will recited that the deceased had a wife at the time of his death residing in Northfield, Minn., but that she and the deceased had not lived together for two years previously, and that the petitioner was unable to say whether or not they were divorced at the time of the death. The executor named in the will, one Matthias Bartholet, filed the will on February 6, 1897, and it was admitted to probate on March 26, 1897. Matthias Bartholet was appointed executor, and qualified as such. An inventory was filed, and on May 18, 1897, an appraisement made of the personalty, and on August 7, 1897, an appraisement was made of the realty, belonging to the estate. The personalty was appraised at $2,369 and the real estate at $368.01. On April 12, 1911, the executor filed his final account, showing money on hand, $2,338.07, and real estate valued at $4,500. The final account was approved May 1, 1911. On May 15, 1911, an order to show cause why distribution should not be made was entered and set for hearing on June 12, 1911. This order to show cause was published in the paper designated by the court on May 18, May 25, June 1, and June 8, 1911. A decree of distribution was entered June 12, 1911, ordering the estate distributed in accordance with the terms of the will. On September 28, 1911, the petitioner, who then resided in St. Paul, Minn., filed her petition in the superior court of Kittitas county, praying for a vacation of the order of distribution, and for a decree declaring that the deceased died intestate, and ordering the distribution of his estate accordingly. The executor demurred to this petition, on the ground that the relief sought was barred by the statute of limitations. The demurrer was sustained. On January 25, 1912, the petitioner filed an amended petition, alleging her marriage with the deceased in 1891, the continuance of that relation until his death; that the will was made prior to the marriage, and was never republished thereafter; that the decedent left her in 1895, and came to Washington, remaining there until his death; that some time after his death she was informed thereof, caused inquiry to be made, and was informed by one Bartholet that the deceased left no property, which statement she relied upon until September, 1911, when she first learned that the deceased left an estate; that the proponents of the will knew of the marriage subsequent to the making of the will, knew that petitioner had been misinformed as to the facts, and probated the will in fraud of her rights. The petition outlined the proceedings in the probate court, and alleged that the order of distribution was void because based upon insufficient notice, and that no actual distribution had been made. The petition prayed that the probate proceedings be set aside; that the deceased be declared to have died intestate; that letters of administration be issued to close the estate; and that petitioner be adjudged the owner of an undivided one-half of the estate. A demurrer to the petition was interposed on the ground that it did not state sufficient facts, and that it was not filed within the time limited by law after probate of the will. The demurrer was overruled. The petitioner's deposition was read in evidence. The defendants offered no evidence. The court made findings corresponding, in substance, with the amended petition, and concluded, as a matter of law, that the will should be deemed revoked and ineffectual as a muniment of title; that the order of probate was without prejudice to the assertion of the rights of the petitioner as widow and heir at law of the deceased; that the order of probate was erroneous; that the decree of distribution was founded on insufficient notice; that the executor should be allowed compensation for his services and counsel fees; and that the remainder of the estate should be held by him for distribution to the heirs at law of the decedent as in case of intestacy. Decree was entered accordingly, and defendants, the executor and devisees under the will, prosecute this appeal.
The respondent contends that the will was revoked by the subsequent marriage of the testator, under the terms of Rem. & Bal. Code, § 1323, which reads as follows: 'If, after making any will, the testator shall marry and the wife shall be living at the time of the death of the testator, such will shall be deemed revoked, unless provision shall have been made for her by marriage settlement, or unless she be provided for in the will, or in such way mentioned therein as to show an intention not to make such provision, and no other evidence to rebut the presumption of revocation shall be received.' She asserts (1) that she was not bound by the decree of distribution, because it was based upon insufficient notice; (2) that she was not bound by the order probating the will, though her petition was filed more than the one year thereafter accorded by the statute for contesting the probate of a will, because her petition did not present such a contest as is contemplated by the statute, and that, in any event, there was such fraud in obtaining the order admitting the will to probate (as distinguished from fraud in procuring the making of the will) as to open the order of probate to an attack in equity on seasonable application after the discovery of the fraud. A solution of these questions must be determinative of the case.
1. The respondent's first contention must be sustained. The statute governing the decree of distribution in probate proceedings (Rem. & Bal. Code, § 1589), by reference to the statute governing the sale of real estate by an executor or administrator, provides that the decree shall be made only after notice of hearing has been 'personally served on all persons interested in the estate at least ten days before the time appointed for the hearing of the petition, or shall be published at least four successive weeks in such newspaper as the court shall order' (Rem. & Bal. Code. §§ 1499, 1500). In this case, though, the notice was published four times. The first publication was on May 18, 1911, and the hearing was set for June 12, 1911. Less than four weeks elapsed between these dates. We have held such a notice insufficient to give the court jurisdiction to make an order of distribution. Ball v. Clothier, 34 Wash. 299, 75 P. 1099; Teynor v. Heible, 74 Wash. 222, 133 P. 1, 46 L. R. A. (N. S.) 1033.
2. Whether the respondent was bound by the order admitting the will to probate must depend upon the scope and purpose of the statute authorizing the contest of a will. That statute, referring to Rem. & Bal. Code by section numbers, reads as follows:
At common law, wills of real estate were not probated. The contest as to devised real estate was therefore tried by ejectment, brought either by the claimant under the will or by the heir at law, according at the one or the other was in possession, while wills of personalty were probated in the ecclesiastical courts. Our statute includes both wills of personalty and wills of realty, and limits the time of contest as to both. The section last above quoted must be construed as a statute of limitations, a statute of absolute repose as against the claims of all persons save those laboring under the disabilities mentioned, and as to all cases covered by ...
To continue reading
Request your trial
-
State v. McCollum
... ... administrator to waive a right, or admit by his action or ... inaction a claim against an estate. The reasons stated in the ... Denney case are unsound. The case seems to have proceeded ... upon the theory that the probate court was ... ...
-
Hay v. Hudson
... ... to plaintiff, John W. Hay, secured (1) by a chattel mortgage ... from Frank L. Hudson to plaintiff; (2) by a real estate ... mortgage from Frank L. Hudson and Harriet Hudson to ... plaintiff; (3) by a real estate mortgage from Frank L. Hudson ... and Leonard W ... ...
-
Shattuck v. Shattuck
... ... 1938. His will was duly admitted to probate on October 11, ... 1938, and after the due administration of the estate all of ... which for the purposes of this litigation was by appropriate ... stipulation considered to be personalty the residue was ... finally ... ...
-
Swaringen v. Swanstrom
... ... particularly as to a revocation clause therein, when evidence ... is material. In re Johnston's Estate, 188 Cal ... 336, 206 P. 628; In re Lobb's Will, 173 Or. 414, ... 145 P.2d 808; Brittian v. Puckett, 173 Okl. 422, 48 ... P.2d 1058; Reed v ... ...