In re Johnston's Estate

• Decision Date: 05 August 1919
• Docket Number: 15151.
• Citation: 107 Wash. 25,181 P. 209
• Court: Washington Supreme Court
• Parties: In re JOHNSTON'S ESTATE (two cases.

181 P. 209

107 Wash. 25

In re JOHNSTON'S ESTATE (two cases.

No. 15151.

Supreme Court of Washington

August 5, 1919

Department 1.

Appeal from Superiro Court, Pierce County; W. O. Chapman, Judge.

In the matters of the estates of David Steele Johnston and Marie Helen Johnston. Proceeding by heirs and legatees to set aside orders approving the final accounts of the administrator with the will annexed and the decree of distribution and to obtain an accounting. From orders directing that exceptions to the administrator's reports be overruled, and that his last report in each case be approved, the objectors appeal. Judgment reversed, with directions.

L. B Da Ponte and Ellis, Fletcher & Evans, all of Tacoma, for appellants.

Hayden, Langhorne & Metzger and Bates & Peterson all of Tacoma, for respondent.

TOLMAN, J.

This is a proceeding brought by the heirs and legatees of David Steele Johnston to set aside the order approving the final account of the administrator with the will annexed and the decree of distribution, and to obtain an accounting from such administrator; also a like proceeding on behalf of the legatee of Marie Helen Johnston, based largely upon the same facts. It appears from the petition in the D. S. Johnston estate that the decedent died in Pierce county, Wash., on August 11, 1913, leaving a non-intervention will, by the terms of which he bequeathed to the petitioners James Ronald Simon and George Howard Simon, minor grandsons, the sum of $5,000 each. The household effects, jewelry, and silverware were left to the widow; and the remainder of the estate was devised in certain allotted shares to the widow and certain children and grandchildren of the testator. The widow was named as executrix, without bond. The will was admitted to probate in Pierce county. The widow, Marie Helen Johnston was confirmed as executrix, and entered upon her duties as such. On September 6, 1913, an inventory and appraisement were filed, showing the total value of the estate to be $144,900, but no order of solvency was ever obtained. An order to publish notice to creditors was made and, without any other proceedings appearing of record in the estate, the executrix died on February 24, 1914, leaving a will, by the terms of which she bequeathed her interest in the estate to Howard A. Johnston. Thereafter, with the consent of all interested, the respondent, Walter M. Harvey, a practicing attorney of Pierce county, who had theretofore been the attorney and close personal friend of the deceased in his lifetime, and who was the attorney for the executrix up to the time of her death, was appointed administrator with the will annexed of both estates, and duly qualified as such. Respondent proceeded by petition and order of court based thereon to convey certain real estate belonging to the D. S. Johnston estate, appraised at $24,000, to the National Bank of Tacoma, in consideration of the assumption by the bank of $12,000 of mortgage indebtedness secured thereon, and the release and satisfaction of $10,200 of indebtedness due to it from that estate. This is the only act of the administrator not attacked or questioned by the petitioner.

The main contentions grow out of the manner in which the administrator handled some 347 vacant and unimproved lots lying in Woodlawn addition to Tacoma, appraised at $15,000, and 1,200 shares of the capital stock of Eilers Music House, a corporation, appraised at $100,000. We have with infinite care accomplished the herculean task of carefully reading and considering the 387 pages of printed briefs and the 177 pages of the abstract of the record; and, the abstract proving to be argumentative and partisan, we have also been obliged to give the same painstaking study to the 151 pages of the record, the 306 pages of the statement of facts, and the voluminous files in both probate proceedings as would have been required had no abstract been furnished. The points raised are so many and the irregularities complained of are so numerous that it is manifestly impossible to discuss or even mention each of them without unduly extending this opinion; but whether mentioned or not, each has been given a careful study. The further facts will sufficiently appear as we proceed.

The trial court, after a full hearing upon the petitions, so far sustained them as to direct that the final report and account of the administrator and the decree of distribution in both estates be vacated, and the administrator was directed to file a new report and full accounting within 20 days. With this order the administrator complied, and filed new final accounts, not differing materially from the accounts which had been previously attacked and set aside. To these accounts or reports petitioners filed objections and exceptions, raising the same issues as were previously raised by the petitions; and, the matter coming on to be heard upon the exceptions in a different department and before another judge, upon the testimony previously taken, the trial court, after consideration, made an order to the effect that it was improper for him to review the rulings of an associate judge still sitting, or to express his views upon a matter already passed upon in another department of the same court, and directed that the exceptions be overruled, and that the last report of the administrator in each case be approved as his former reports were approved in the other department, from which order in each case this appeal is prosecuted.

The motion to dismiss the appeal is not well taken, and will be denied without a discussion of the reasons therefor.

It is contended by respondent that the order approving the final account and decree of distribution was a final order, and therefore appealable, and that petitioners should have appealed therefrom instead of attacking it by petition to vacate in the court where made. It may be conceded that such is the rule where it is sought to correct an error of law made by the trial court. Sound Inv. Co. v. Fairhaven Land Co., 45 Wash. 262, 88 P. 198, and cases there cited. But these authorities in no wise limit the force of our statute (Rem. Code, § 464) with reference to the vacation and modification of judgments. Appellants in filing their petition were apparently proceeding under subdivisions 3 and 4 of that statute, and perhaps also under subdivision 8; and they certainly charge every conceivable form of irregularity and make many harsh charges of fraud. Without going into detail, we find that the charges of irregularity were amply sustained, and that the court had in the order and decree under attack approved the payment of claims against the estate which were not presented within one year, had never been indorsed with the approval of the administrator or the judge, and could not then be found in the court files, as well as many other irregularities. In fact, it may be said that irregularity was the rule and regularity the exception, as is abundantly shown by the record now before us, though we think the charges of fraud which were repeated and renewed in this court are wholly unsustained and unproven. These irregularities, which unfortunately abound, bring the case within the purview of the statute, and place it without the rule laid down in Sound Inv. Co. v. Fairhaven Land Co., supra. It was said in Re Doane Estate, 64 Wash. 303, 116 P. 847:

'We are not holding in this case that the superior court has not jurisdiction to set aside a decree settling a final account upon a proper showing.'

Nor has the plain language of the statute been anywhere limited by construction, so far as we are now advised. Since we have found that there was no fraud proven, but that the irregularities, which cannot be denied, are sufficient under the statute to justify the vacation of the order and decree, we need not consider those cases in which it was sought to set aside a decree on the ground of fraud, after the expiration of the time fixed by the statute, either by direct or collateral attack. If, then, the trial court was justified in setting aside the order and decree because of irregularities in obtaining it, arising from the failure to comply with the statutes then in force governing the presentation, allowance, and filing of claims against the estate, whereby the decree was caused to recite the approval of, and the approval of the payment of, claims which the record failed to disclose, and which could not then be legally enforced, we must now inquire whether, after the filing of a new account and the taking of evidence touching all of the charges made by the petitioners, and the objections and exceptions to the final account, in which proceeding all parties in interest were represented, the final account should have been approved.

We cannot discuss, or even state, many of appellant's contentions; but those not stated or discussed have been fully considered and found to be without merit. Confining this opinion to the principal contentions, we will very briefly refer to the following:

1. The lots in Woodlawn addition were appraised at $15,000, the greater part being covered by a mortgage for $3,800, upon which there was considerable accrued interest, and all being subject to taxes and assessments amounting to approximately $2,000. Shortly after respondent qualified proceedings to foreclose the mortgage were commenced. Respondent appeared in the foreclosure action, and as a matter of favor, and by dilatory tactics, considerably delayed the foreclosure. In the meantime he tried diligently to find a purchaser for this property, in whole or in part, without success, and finally, without authority from the heirs or from the court, he employed an agent to sell the lots at retail on contract, mostly with a small payment down, and the...