In re Larson's Estate

• Decision Date: 10 August 1936
• Docket Number: 26023.
• Citation: 187 Wash. 183,60 P.2d 19
• Court: Washington Supreme Court
• Parties: In re LARSON'S ESTATE. v. HAVENS. STATE, by PEMBERTON, Supervisor of Inheritance Tax and Escheat Division,

60 P.2d 19

187 Wash. 183

In re LARSON'S ESTATE.

STATE, by PEMBERTON, Supervisor of Inheritance Tax and Escheat Division, v. HAVENS.

No. 26023.

Supreme Court of Washington

August 10, 1936

Department 1.

Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

Proceeding in the matter of the estate of C. Larson, deceased, wherein Claud Havens was appointed administrator of the estate of C Larson, deceased, and wherein the State of Washington, by William H. Pemberton, Supervisor of the Inheritance Tax and Escheat Division thereof, sought to be heard with reference to admission to probate of the will of C. Larson. From an order admitting the will to probate, the State of Washington appeals.

Appeal dismissed.

William H. Pemberton, of Olympia, and Lyle K. Summers, of Seattle for appellant.

E. A Philbrick, of Olympia, for respondent.

MITCHELL Justice.

Heretofore there was controversy in this estate over the appointment of a general administrator. That controversy reached this court on appeal, and, it appearing from the record that there was in existence what purported to be a will of the deceased, it was held that no order should have been entered at the time appointing a general administrator, and the cause was remanded for a stay of proceedings in that respect until the court disposed of the admission or rejection of the will. In re Larson's Estate, 184 Wash. 75, 49 P.2d 919.

Thereafter the will was presented to the judge of the superior court for probate, in common form, without any order fixing time for the hearing, and without published notice or process of any kind directed to anyone with respect thereto. Rem.Rev.Stat. § 1380; 68 C.J. (Wills) § 624, p. 896.

It appears that the testimony of the subscribing witnesses to the will was taken by depositions and the matter then submitted, ex parte, by the proponents of the will to the superior court. At that time the supervisor of the inheritance tax and escheat division of the state, because of a courtesy notice, appeared in court, by his attorney, and without any written issue of contest or protest made or tendered, asked to be heard orally with reference to the admission or rejection of the proposed will. The judge denied that right. Then, upon considering the proof, an order was entered admitting the will to probate, it being recited in the order that the division of inheritance tax and escheat had received a copy of the petition and will and had not filed any contest or protest thereto, or counter petition, nor proposed any other person as administrator with the will annexed.

The clerk's minutes show that at the time the order admitting the will was signed and entered, counsel for the supervisor of the inheritance tax and escheat division of the state gave oral notice, in court, of appeal to the Supreme Court.

The case must be disposed of here upon a consideration of the practice prescribed by statute. As already stated, the hearing in the superior court was not a will contest, but an ex parte mode of probate, no issue having been proposed or made. The ruling of the trial court at the hearing gives a clear conception and construction of the applicable statutory procedure. There had been some correspondence from the appellant to the attorneys on the other side about the controversy. These letters were offered in evidence by the appellant. The offer was objected to because they were immaterial. In rejecting that proof, the court said:

'It is my view that, so far as the probation of this will is concerned, that nobody is concerned so far as it affects the Department. If there is any contest to be made on the will there is ample time to institute proceedings for that purpose. The only purpose of this hearing was to have the will presented and to determine whether or not the peculiar writing which was presented was a will.

'Now, there are no heirs and no interested persons appearing at all in opposition to it. The Department's only interest is to determine whether or not this estate finally will be escheated and if they want to contest the will, the statute provides the manner for it, and I don't think these letters or any notice was necessary or that it was necessary for the Department to be present.

'Mr. Boyle: Then I will have these letters marked for identification, Your Honor. This letter to Mr. Philbrick dated October 9th, indicating a copy of the letter to the Honorable John M. Wilson.

'The Court: Well, you are not in this case, Mr. Boyle. I don't see how you can present anything here.

'Mr. Boyle: Well, the Court has permitted me to address the Court and I am still in the courtroom.

'The Court: But you are not on the record. Well, you can mark them for identification as presented by the Department of Inheritance Tax and Escheat.'

Still further, the appellant objected to the consideration of the testimony of the subscribing witnesses to the will because it had been taken without notice to the appellant, unless leave now be granted to the appellant to cross-examine those witnesses, orally or in writing. Upon this request, which was denied, the court held: 'That request will be denied. The Department was an adverse party in this proceeding in the contest as to who should be appointed administrator. You went up to the Supreme Court and the Supreme Court wrote an opinion in which they did not determine that fact but said, inasmuch as this will had been mentioned in the petition, that it was the duty of the Court to pass upon the question of whether or not this paper was sufficient to constitute a will. And it was brought back here and under the statute it is the duty of the Court to proceed with the probate of a will when it is presented. I do not consider that the Department is an adverse party in this proceeding, so far as this will is concerned; and for that reason the Court is proceeding as it is. And I may say further that, since the matter was presented to me, I have taken occasion to examine the authorities very carefully upon the question of the position of the signature upon the will and also the language disposing of the property in the will. Mr. Boyle: I would like to be heard on that Before Your Honor rules. The Court: I am not going to let you be heard. I told you I do not think you are in this case and I am satisfied that that is legally a will; and I so rule at this time and order the will admitted.'

The ruling was clearly right under the statutes. Rem.Rev.Stat. § 1380, provides: 'Applications for the probate of a...