In re Pompal's Estate

• Decision Date: 13 December 1928
• Docket Number: 21246.
• Citation: In re Pompal's Estate, 272 P. 980, 150 Wash. 242 (Wash. 1928)
• Court: Washington Supreme Court
• Parties: In re POMPAL'S ESTATE. v. JEWETT. POMPAL et al.

272 P. 980

150 Wash. 242

In re POMPAL'S ESTATE.

POMPAL et al. v. JEWETT.

No. 21246.

Supreme Court of Washington

December 13, 1928

Department 2.

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

Petition by Louise Pompal in the matter of the estate of Joseph M Pompal, deceased, of which Louis Budwick was the executor, to have awarded and set off to her as the surviving spouse property of the estate, opposed by F. L. Jewett as a creditor of the deceased. Petition granted, and the creditor appeals. Reversed and remanded, with directions.

Solon T. Williams and Abe Spring, both of Seattle, for appellant.

Smith &amp Matthews, of Seattle, for respondents.

FULLERTON C.J.

One Joseph M. Pompal died on October 22, 1925. At the time of his death, he was a resident of Seattle, in King county, state of Washington, and left an estate therein consisting of money on deposit in a bank. He also left an estate consisting in part of real property and in part of personal property, situated in and near the town of Circle, in the territory of Alaska. The decedent left a wife, but no issue. It appears that he and his wife had become estranged, and, for some four years prior to his death, had lived separate and apart. During this period the wife resided in the Dominion of Canada, and it is not shown that she at any time resided within the state of Washington.

The decedent left a will, in which he purported to dispose of all of his property. He bequeathed and devised to his wife all of the property situated in Alaska, and $500 in money. The remainder of his property he bequeathed to his collateral heirs, making his sister the residuary legatee. He named the respondent, Louis Budwick, as his executor, who in due time caused the will to be probated, and himself confirmed as such executor.

The appellant, F. L. Jewett, held an obligation of the decedent in the form of a promissory note. This he duly presented to the executor as a claim against the estate. The executor rejected the claim, and the appellant brought an action thereon and obtained a judgment establishing it as a claim. This judgment was affirmed on an appeal. Jewett v. Budwick, 145 Wash. 405, 260 P. 247. Later on, the wife, as the surviving spouse, petitioned the court to award and set off to her the property of the estate to the extent of $3,000, pursuant to section 1473 of the Code (Rem. Comp. Stat.). It appeared that such an award, if made, would practically exhaust the property of the estate, leaving insufficient funds to pay the appellant's claim. The appellant thereupon appeared and resisted the petition, questioning the right of the wife to the award. a hearing was had thereon, at the conclusion of which the court entered an order in accordance with the petition of the wife. It is from this order that the appeal before us is prosecuted.

As a preliminary question, the respondents contend that the appellant, being only a creditor of the estate, is not in a situation which will permit him to question the award made to the wife. But we think the objection untenable. If the award made the wife left sufficient property in the hands of the executor to satisfy the appellant's claim, then doubtless he would be precluded from objecting to it, whether it was right or wrong, on the ground of want of interest. But here he is materially affected by the order. As we have said, it leaves insufficient funds out of which his claim can be satisfied, and manifestly a creditor of an estate has such an interest therein as will enable him to question orders the effect of which is to leave his claim unsatisfied. See 24 C.J. 272, 388.

The appellant first contends that the wife, since she was living in a foreign jurisdiction separate and apart from her husband, cannot claim under the cited provisions of the statute. But we think our cases of In re Lavenberg's Estate, 104 Wash. 515, 177 P. 328, and In re Johnson's Estate, 114 Wash. 61, 194 [150 Wash. 245] P. 834, conclude the question against him. Neither of these cases, it may be true, involved the element of living separate and apart, but the grounds upon which the decisions were rested indicate clearly that this is not a material consideration. The court based the right squarely upon the terms of the statute. It was held that the statute gave the right to the surviving spouse, subject only to the exceptions therein provided, and that it was sufficient to entitle the spouse to the right to show a lawful existing marriage, and that the exceptions the statute imposed were nonexistent. Living separate and apart, it will be noted, is not a statutory disqualification.

The principal question presented by the record is the status of the property involved. The statute provides that the award shall not be taken from the separate property of the deceased where the property is disposed of by will and there is no minor child living as the issue of the surviving spouse and the deceased. In this instance, as we have pointed out, the property was disposed of by will, and there was no living issue of the marriage, and, if the wife is entitled to the award, it must be because the property in this state was the community property of the spouses.

To show the source of the money forming the property of the estate which is subject to administration in this state, the appellant sought to take the depositions of certain witnesses residing at...