In re Jordan's Estate, 24318.

• Decision Date: 08 February 1933
• Docket Number: 24318.
• Citation: 18 P.2d 855,171 Wash. 624
• Court: Washington Supreme Court
• Parties: In re JORDAN'S ESTATE. v. JORDAN. RASCHKE

18 P.2d 855

171 Wash. 624

In re JORDAN'S ESTATE.

RASCHKE v. JORDAN.

No. 24318.

Supreme Court of Washington

February 8, 1933

Department 1.

Appeal from Superior Court, King County; Everett Smith, Judge.

Proceedings in the matter of the estate of Frank M. Jordan, deceased, of which Ada M. Jordan was executrix, wherein Fred W. Raschke as guardian, filed a petition for an order to show cause why the executrix should not be required to make full accounting of moneys and property of the guardian's wards held by and under the control of the deceased at the time of his death. From an order disallowing the claim of the guardian after a prior order had established the guardian's claim as a preferred claim against the estate, the guardian appeals.

Affirmed.

L. C. Stevenson, of Seattle, for appellant.

Stratton & Kane, of Seattle, for respondent.

MILLARD J.

A decree was entered February 27, 1918, in the superior court for King county, divorcing Fred W. Raschke from Lillian Raschke. The decree provided that a parcel of land in King county, awarded to the two minor children of the Raschkes should be held by Frank M. Jordan as trustee for the two minors. Mr. Jordan qualified as trustee, but at no time made an accounting of the trust property or any of the funds derived therefrom. This trustee died testate, in King county in January or February, 1931. In his nonintervention will the testator's widow was nominated executrix. The will was filed for probate, and the executrix qualified. Notice to creditors was duly published. On March 7, 1931, Fred W Raschke was appointed and qualified as guardian of the two minors. On March 9, 1931, the guardian filed petition (while averring the petition is based on an affidavit the record does not disclose that the affidavit was filed with the clerk of the court), which was served upon the executrix of the estate of the deceased Jordan, for an order to show cause why the executrix should not be required to make a full accounting of the moneys and property of the minor Raschkes held by and under the control of the decedent at the time of his death, and now in the possession and under the control of the executrix; and why the executrix should not be restrained from disposing of any portion of the estate until the alleged trust fund was turned over to the guardian of the two minors. No claim was ever served on the executrix and filed with the clerk of the court. The order to show cause and the restraining order were granted. On April 14, 1931, the court entered an order establishing the guardian's claim as a preferred claim against the estate of the decedent. That order reads as follows:

'This matter came on regularly to be heard in open court this day pursuant to adjournment upon the order to show cause heretofore made and entered herein, and

'It appearing to the Court that there is due to said guardian from the estate of said deceased the sum of $1349.05 and that said claim is a preferred claim against said estate and should be paid Before any general claims of creditors against said estate.

'It is therefore ordered that said claim of said guardian be and the same is hereby established and allowed as a preferred claim against said estate in the sum of $1349.05, and

'It is further ordered that said claim be paid Before any payments be made upon general claims against said estate.'

On March 2, 1932, the executrix filed her petition (in which were listed the names of creditors whose claims had been filed) for an order adjudging rank and order of payment of claims filed. The petition recited that, in addition to the listed claims, the court entered an order establishing the claim of the guardian on behalf of his two wards as a preferred claim against the estate; that it was not likely that, after the payment of the expenses of administration, 'there will be any funds left with which to pay any of the above named claims or any part thereof.' An order was entered requiring the creditors to appear and show cause why an order should not be entered establishing the rank of the claims filed against the estate, and directing their order of payment. Pursuant to that order, the matter came on regularly to be heard on the 11th day of March, 1932. At that hearing the creditors, the guardian, and the executrix appeared and participated therein. On August 2, 1932, the court entered an order establishing the rank of the claims filed. The claim of the guardian was disallowed. So far as material, the order reads as follows:

'* * * And it appearing to the Court that due service of said order to show cause was duly served upon the creditors who have filed claims herein, the Court having listened to testimony and evidence in said cause by various of the creditors, does find:

'That there shall be first paid out of the funds and property belonging to said estate the expenses of the administration. * * *

'It is further adjudged and decreed that the claim of Fred W Raschke is disallowed entirely, the same not having been filed as required...