In re Laack's Estate

• Decision Date: 11 December 1936
• Docket Number: 26298.,26297
• Court: Washington Supreme Court
• Parties: In re LAACK'S ESTATE.

62 P.2d 1087

188 Wash. 462

In re LAACK'S ESTATE.

Nos. 26297, 26298.

Supreme Court of Washington

December 11, 1936

Department 2.

Appeal from Superior Court, King County; John A. Fraler, Judge.

In the matter of the estate of William H. Laack, deceased. From a judgment in favor of Julia Ostby, Mary Wilhelmina Laack (Oliver), administratrix de bonis non cum testamento annexo appeals.

Affirmed.

John G. Barnes, of Seattle, for appellant.

Roberts & Skeel, W. E. Evenson, Jr., and Allen & Wilkins, all of Seattle, for respondent.

HOLCOMB Justice.

Two appeals are now Before us involving the same transaction in the lower court in the matter of the above estate. The earlier history of the controversy over this estate can be found in Laack v. Hawkins, 155 Wash. 308, 284 P. 89 decided January 21, 1930.

Respondent Julia Ostby, by mesne conveyances from the former trustee of the last will of the testator, has become the owner of the property referred to as the Holgate Hotel in Seattle.

On the former appeal this court found that the lower court had considered and approved the sale of that real estate although it was in some respects irregular; that the court had made its order of final settlement of the estate and discharged the executors; that appellants had not appealed from that order, and therefore the decree was res judicata.

At all times during the pendency of the probate proceedings in this estate and in the former litigation Mr. Barnes has been counsel for the heirs. While the former appeal was pending, he caused an application to be made to the superior court in the estate for letters of administration de bonis non cum testamento annexo on behalf of Mary Wilhelmina Laack (Oliver), on the theory that the Holgate Hotel property had not been properly sold and was still an asset of the estate requiring further administration. Objections were filed on behalf of the executors and trustees Before the court and a hearing had in October, 1929, Before one of the judges of the lower court. The petition for letters of administration d. b. n. c. t. a. on the Laack estate was denied on the ground that the validity of the Holgate Hotel property sale had been previously tried and finally adjudicated and no further administration thereon was necessary. No appeal was taken from that order denying such letters to appellant and it became final.

Thereafter, appearing Before another judge of the same court, appellant Mary Wilhelmina Laack (now Oliver) procured an order appointing her administratrix d. b. n. c. t. a. from a new judge.

Respondent found it necessary to defend her title and, believing that the appointment of appellant as administratrix was improvident and invalid, filed her petition that the appointment be revoked because of fraud on the part of appellant in concealing the fact that upon the same identical matters alleged in her petition a different judge of the court had found untrue five years previously, and denied her petition.

Respondent's petition incorporated by reference all the prior pertinent records of the estate of which the lower court and this court take judicial notice. In re Parkes' Estate, 101 Wash. 659, 172 P. 908.

Although all of those documents are not Before us, they were Before the trial court, and are now conclusively presumed to support the order of the trial judge vacating and annulling the appointment of appellant administratrix d. b. n. c. t. a.

The contentions urged to reverse the judgment are, first, that the court is without jurisdiction of appellant, in that the proper procedure and statutory steps were not complied with to bring respondent's petition on for hearing Before the probate department of the superior court; and, second, that the court was unwarranted in revoking, annulling, and setting aside the order appointing her administratrix d. b. n. c. t. a.

The record undoubtedly shows that appellant procured the order appointing her as administratrix d. b. n. c. t. a, without notice, since it shows that the order so appointing her was made by a new and different judge who was not theretofore familiar with the record and it recited that notice to creditors had been published by the executors on January 23 1923, so that no further notice was necessary. It thus is plain that no one interested in the estate adversely to appellant had any knowledge of her appointment until she commenced an action in ejectment against respondent to quiet title...