In re Murphy's Estate

• Decision Date: 16 September 1902
• Citation: 70 P. 107,30 Wash. 1
• Court: Washington Supreme Court
• Parties: In re MURPHY'S ESTATE. v. MURPHY. FILLEY

70 P. 107

30 Wash. 1

In re MURPHY'S ESTATE.

FILLEY v. MURPHY.

Supreme Court of Washington

September 16, 1902

Appeal from superior court, Thurston county; O. V. Linn, Judge.

In the matter of the estate of Eliza J. Murphy, deceased. Proceeding by George E. Filley against John Miller Murphy. From an adverse order and judgment, Murphy appeals. Reversed.

G. C. Israel, for appellant.

J. W Robinson and W. I. Agnew, for respondent.

HADLEY J.

This is an appeal from a final order and judgment of the court upon a citation issued against appellant. The record shows that upon the petition of certain heirs at law of Eliza J. Murphy deceased, the respondent, George E. Filley, was appointed administrator of the estate of said deceased to succeed the appellant. Appellant had theretofore been the acting and qualified administrator, but, owing to the withdrawal of one of his sureties from his bond as administrator, and the failure of appellant to file a new or additional bond within the statutory time, a vacancy occurred, which was filled as aforesaid. After the appointment of respondent, Filley, he demanded of appellant that he turn over to him all books of account, papers, credits, moneys, and personal property belonging to said estate relating to the Washington Standard newspaper and job printing office, and also demanded possession of what is known as the 'Opera House,' together with all the property belonging to said estate used in connection with said opera house on Fourth street in Olympia, Wash., and all moneys which had come into appellant's hands as the party in possession of said opera house since October 26, 1896. The demand was made in writing, and to the demand appellant made written answer, in substance as follows: That the said opera house was then, and always had been, in his possession, not as administrator of said estate, but that said building was erected upon real estate one-half of which was his separate property, and that one-half of the expense of the erection of the building was paid by him from his separate funds; that the other half of said property belonged to the community consisting of himself and the deceased, who was his wife that his possession and occupancy was that of a tenant in common with said estate, and that he had made report to the court of such possession, and was ready and willing to account at any time for one-half of the net earnings of the opera house since his removal as administrator; that said estate had not then, and never had, any interest in the Washington Standard printing plant and paper, or in any of the personal property connected therewith, the same having been his separate property, and being then owned by himself and sons as partners. Other property was mentioned in the said demand and answer, but no controversy exists in reference thereto, and the same need not be mentioned here. Upon receipt by respondent, Filley, of the aforesaid written answer of appellant, said Filley, as administrator, applied to the court for a citation requiring appellant to appear before the court and give a full account under oath of all property belonging to said estate in his possession, and that he be required to turn over the same to said administrator. Thereupon a citation was issued. The petition upon which the citation was issued contained as exhibits, and a part thereof, copies of the aforesaid written demand and answer thereto, and appellant, appearing on the return day of the citation, demurred to the petition, and moved the court to dismiss the same, and quash the citation, for the alleged reason that it is apparent from the face of the petition and exhibits therein set forth that the court has no jurisdiction in this proceeding of the subject-matter or of the appellant for the purpose of trying title or right of possession to said property. The demurrer was overruled. Thereupon appellant answered the petition, in which he set forth the facts upon which he bases his claim of separate ownership in the newspaper property above mentioned, and also in the one-half of the opera-house property. The administrator, by reply, denied the material averments of appellants's said answer, thus putting in issue the question of title and the facts upon which appellant claims the right of possession to the property demanded. The reply further alleged that appellant, when he was administrator, had caused all of said property to be inventoried as the property of said community, and that he is now estopped from claiming any portion thereof as his separate property. Upon the completion of the issues as above stated, the court announced that the issues thereby made were ready for trial, whereupon appellant objected to the court trying the issues, for the reason that by the same the title to the property, both real and personal, must be determined upon the trial, and that the court, acting in probate, is without jurisdiction, and moved the court to transfer the same to the civil department for trial. The objection and motion were overruled. Thereupon appellant, in writing, demanded a jury trial of the said issues of separate ownership and right of possession, which was also denied. The court thereupon proceeded to try the issues involved without a jury, and thereafter entered judgment to the effect that the appellant is estopped to now assert a claim of ownership in any portion of said property as against the demand of his successor, and that he shall turn over to said administrator said operahouse property and the undivided one-third interest in and to the Washington Standard news and job printing office, together with $243 cash, shown to have been collected from said property since his removal as administrator, and also all papers, title...