In re Jones' Estate

• Decision Date: 28 July 1921
• Docket Number: 16182.
• Citation: 199 P. 734,116 Wash. 424
• Court: Washington Supreme Court
• Parties: In re JONES' ESTATE. v. BABCOCK et al. JONES

199 P. 734

116 Wash. 424

In re JONES' ESTATE.

JONES v. BABCOCK et al.

No. 16182.

Supreme Court of Washington, En Banc.

July 28, 1921

Appeal from Superior Court, King County; John S. Jurey, Judge.

In the matter of the Estate of M. F. Jones, deceased. Petition by Isabella Jones against Eva A. Babcock and others to set aside a judgment of final distribution of the estate. From a judgment vacating the decree of distribution, Eva A. Babcock and others appeal. Rversed.

James McCabe and Hyman Zettler, both of Seattle, for appellants.

Karr &amp Gregory, H. G. Sutton, and Burkheimer & Burkheimer, all of Seattle, for respondent.

MACKINTOSH J.

In October, 1917, M. F. Jones died intestate, leaving surviving him a widow, the petitioner herein, who was appointed as administratrix of his estate. He left surviving him no children and no direct descendants, no father, mother brother, nor sister, but 12 nieces and nephews, and children of deceased nieces and nephews. Jones' estate consisted of community and separate property, and in December, 1918 was in condition for the filing of the final account and the securing of an order of distribution. In that month such an order was entered upon the petition of the administratrix, and by the order she received all the community property and all the personal property, while the separate real property was distributed one-half to her, as the widow, and one-half to the nieces and nephews and children of deceased nieces and nephews. The estate was administered and distributed upon the theory that these nieces and nephews were entitled, under section 1341, Rem. Code, to one-half of the separate realty of the deceased.

In July, 1919, after the filing of the final account and petition for distribution, the widow, having in the meantime consulted attorneys other than those that represented her in the settlement of her husband's estate, determined that under section 1341 she was entitled to all of her deceased husband's separate realty, and that the distribution which had been made was erroneous. Therefore, in that month she filed this her petition to vacate the decree of distribution, and sought to have the entire property of the estate awarded her. In this effort she was successful in the lower court, and this appeal has been taken.

The filing of the petition by the respondent for vacation of the decree of distribution is claimed to be sanctioned by section 303 and subdivisions 1 and 3 of section 464, Rem. Code. To determine whether any such sanction exists is to determine this appeal. It is unnecessary to give to section 1341 of the Probate Code a determination as to whether the view of the law taken by the respondent during the administration of her husband's estate, or the view which she now contends for be the correct one. An interesting and close question is presented by the language of that section, but we will assume that respondent's present view correctly interprets the language and meaning of the section, and that the respondent and the court were in error at the time the decree of distribution was made. It is incumbent upon us to inquire into the nature of this mistake, that is, whether it was a mistake of fact or a mistake of law. To clear the ground for the question just stated, it is necessary to first dispose of a few preliminary matters.

In the case of Morgan v. Williams, 77 Wash. 343, 137 P. 476, this court concisely defined an error of law as being an 'error in applying the law to the facts as pleaded and established.' That is the situation here. The court had before it the names of nieces and nephews and children of deceased nieces and nephews, and, referring to section 1341 of the Probate Code, under which distribution is to be made, decided, as a matter of law, that that section entitled these persons to a share of the Jones estate.

Argument is made that a distinction is to be drawn between judgments or decrees entered in actually contested matters and a decree in a probate proceeding where there has been no contest. The fact that the administratrix had, as has been alluded to, secured the decree of distribution of which she now complains exactly in the form in which she asked it, does not affect the nature of the final decree. This court has always held that a decree in probate and a judgment in other forms of action are not to be distinguished as to their effect, nor should there be any distinction between them in applying the general rules as to new trials, vacations of judgment, etc. An error of law, as we will hereafter show, does not furnish ground for the vacation of judgment in an ordinary civil proceeding, and there is no reason why it should have a different effect in reference to probate decrees. See In re McKeever's Estate, 48 Wash. 429, 93 P. 916; In re Ostlund's Estate, 57 Wash. 359, 106 P. 1116, 135 Am. St. Rep. 990; Alaska Banking Co. v. Noyes, 64 Wash. 672, 117 P. 492; In re Hamilton's Estate, 108 Wash. 326, 184 P. 337; In re Nilson's Estate, 109 Wash. 127, 186 P. 268.

We come now to the consideration of the question whether a petition for vacation of judgment may be entertained for error of law discovered too late to be used on appeal.

A literal reading of sections 303 and 464, Rem. Code, which are as follows:

'And [the court] may, upon such terms as may be just, and upon payment of costs, relieve a party, or his legal representatives, from a judgment, order, or other proceeding taken against him through his mistake, inadvertence, surprise, or excusable neglect.' Section 303, Rem. Code.

'(1) By granting a new trial for the cause, within the time and in the manner, and for any of the causes prescribed by sections relating to new trials. * * *

'(3) For mistakes, neglect, or omission of the clerk or irregularity in obtaining the judgment or order.'

Section 464, Rem. Code, subds. 1 and 3.

Together with the statutes relating to new trial (sections 465 and 399, subd. 7, Rem. Code), as follows:

'When the grounds for a new trial could not with reasonable diligence have been discovered before, but are discovered after the term (time) when the verdict, report of referee, or decision was rendered or made, the application may be made by petition filed as in other cases, not later than after the discovery, on which notice shall be served and returned, and the defendant held to appear as in the original action, * * * but no motion shall be filed more than one year after the final judgment was rendered.' Section 465, Rem. Code.

'The former verdict or other decision may be vacated and a new trial granted, on the motion of the party aggrieved for any of the

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