In re Sullivan's Estate

• Decision Date: 19 September 1905
• Court: Washington Supreme Court
• Parties: In re SULLIVAN'S ESTATE. v. CARRAU et al. CORCORAN et al.

82 P. 297

40 Wash. 202

In re SULLIVAN'S ESTATE.

CORCORAN et al. v. CARRAU et al.

Supreme Court of Washington

September 19, 1905

Appeal from Superior Court, King County; W. R. Bell, Judge.

Action by Edward Corcoran and another against Marie Carrau and another to contest the probate of the will of John Sullivan deceased. From an order dismissing the petition, plaintiffs appeal. Reversed.

See 79 P. 1129; 78 P. 945. Donworth, Howe & Farrell, for appellants.

J. P. Houser and J. W. Robinson, for respondents.

HADLEY, J.

This is an appeal from an order dismissing a petition interposed for the purpose of contesting the probate of an alleged nuncupative will. John Sullivan died in the year 1900 leaving a large estate, consisting of real and personal property. In November, 1900, Terence O'Brien was appointed general administrator of said estate, and he is still acting as such. On the 8th day of March, 1901, Marie Carrau filed in the superior court of King county, where the administration proceedings are pending, a petition for the probate of an alleged nuncupative will, which she avers was made by the said deceased, and under which she claims to be the sole beneficiary. The record shows that, on the same day the petition was filed, a so-called citation was issued directed to the widow and next of kin of said deceased citing them to appear before said court at the hour of 10 o'clock a. m. on the said day, and reciting that at said time the said petition would be heard. The citation was filed on the same day, and attached thereto was the return of the sheriff that after diligent search he was unable to find the widow or next of kin of said deceased in King county. Thereupon, on the same day, the court heard testimony and entered an order admitting said alleged will to probate. On June 20, 1901, Hannah O'Callaghan and Edward Corcoran filed their petition contesting the said nuncupative will and the said order of probate. They alleged that Sullivan died intestate, leaving no widow or children, father or mother, brothers or sisters, and no heir or next of kin other than the petitioners, who are alleged to be the first cousins, and the only first cousins, of the deceased; that said Marie Carrau and two of her sisters and a brother-in-law had conspired together to manufacture a pretended will; that these persons had procured said order of probate without notice to any one, and without any lawful citation having been issued. They asked that said order of admission to probate be set aside. Marie Carrau answered said petition in November, 1901. On the 3d day of March, 1902, said O'Callaghan and Corcoran filed a second petition in said contest, and on April 16th of said year Marie Carrau moved to strike said last-named petition on the ground that it was neither signed nor verified by the petitioners, nor by any one authorized in law to verify it. The court granted this motion, and expressly granted the petitioners leave to amend. The petitioners then filed an amended petition, containing a verification by counsel, which stated that the petitioners were nonresidents and that they were not in King county. The last-named petition was filed April 19, 1902. Marie Carrau moved to strike this petition on the alleged ground that the petitioners had not appeared to contest said will within one year from the probate thereof, and afterwards, in March, 1904, before said motion was ruled upon, she further moved that the petition be dismissed for want of prosecution. On the 6th day of January, 1905, the court entered an order granting said motions and dismissing the petition. On the following day, January 7th, the court entered the following order: 'It is by the court ordered that, as the order of the undersigned made on January 6, 1905, dismissing the amended petition of contest of the above-amended petitioners, filed April 19, 1902, was made in the absence of counsel for petitioners, the said order is set aside; and now, on this 7th day of January, 1905, the said amended petition is hereby dismissed. This order is made for the purpose of having the order of January 6, 1905, entered and effective as of this date.' At the time of the entry of the last-named order, Edward Corcoran and Charles H. Farrell, as administrator of the estate of Hannah O'Callaghan deceased, gave oral notice in open court that they appealed from so much of said order as dismissed the said petition. It is that appeal which is now before us.

Terence O'Brien, as the administrator of the Sullivan estate, is made a party respondent to this appeal, but Marie Carrau is the only respondent who has appeared by counsel in this court. Said respondent has moved to dismiss the appeal on the alleged ground that the record discloses facts which deprive this court of jurisdiction. Respondent's contention in this particular is based upon the following facts: As above stated, the court, on January 6, 1905, entered an order dismissing appellants' petition. On January 7th that order was vacated, and another order of dismissal was entered, a copy of which is hereinbefore set out. The oral notice of appeal relates to that part of the last order which dismissed the petition. Respondent contends that the real judgment of dismissal was that entered January 6th, and that no appeal has been taken from that judgment. Respondent has not appealed from the order of January 7th, and her motion to dismiss the appeal is therefore a collateral attack upon so much of that order as vacated the order of January 6th. When proceedings are collaterally attacked, all intendments are in favor of their regularity, and inasmuch as the court found that the first order should be vacated and set aside, we must presume that its finding was based upon sufficient cause, unless the contrary clearly appears. Morrison v. Berlin (Wash.) 79 P. 1114. In Colton Land & Water Co. v. Swartz (Cal.) 33 P. 878, the court said: 'The court had jurisdiction of the parties to the action and of the subject-matter, and upon a collateral attack every presumption will be indulged in support of its judgment. If necessary, therefore, it will be assumed that the former judgment was vacated by consent of the parties, and that an order showing such consent and the vacating of the judgment appears in the minutes of the court.' The same court, in Parker v. Altschul, 60 Cal. 380, said: 'All presumptions are in favor of the correctness of the proceedings of courts of general jurisdiction, and, as the consent of the defendants would have justified the order of the court, we must presume that such consent was given, there being nothing in the record to show that it was not.' In support of the proposition that a trial court, after entering judgment, commits error if it vacates that judgment for mere error of law, respondent cites Coyle v. Seattle Electric Co., 31 Wash. 181, 71 P. 733. In that case, however, the party aggrieved appealed from the order of vacation, and the entire record and attending facts were thus brought up for review. In this case respondent neither appealed from the order of vacation, nor attacked it in the court below. The case cited is therefore not applicable here. In the absence of an appeal from the order of vacation, or of a direct attack thereon, the presumption as to regularity, within the authorities above cited, must obtain. The order of vacation was a final one, affecting a substantial right of respondent with respect to the extension of the time within which appellants could appeal, and it was therefore appealable. State ex rel. Cleek v. Tallman (Wash.) 80 P. 272. Moreover, while the last order remained in force, the first one, which had been set aside, was functus officio, and was one from which appellants could not appeal. The first dismissal had been set aside. The last order dismissed the petition, and it was the one in force. It is the dismissal of the petition of which appellants complain, and they were therefore required to appeal from the last order, and not from the first, which, as the record stood, was without vitality. 'So long as this last judgment remains in force and not appealed from, the first order is not the subject of appeal, since it would be of no service to the appellants to reverse the first order and leave in force the last order, affirming it.' Horn v. Volcano Water Co., 18 Cal. 141. See, also, Luck v. Hopkins (Tex. Sup.) 49 S.W. 360; Keystone Ironworks Co. v. Douglas Sugar Co. (Kan. Sup.) 40 P. 273. For the foregoing reasons, the motion to dismiss the appeal is denied.

It is urged by appellants that the court erred in dismissing their amended petition contesting said alleged will. One ground of the dismissal was that the petition was not filed within one year after the entry of the decree of probate. It will be remembered from the preliminary statement herein that the original petition in contest was filed long within the year and that respondent answered that petition. A second petition was also filed within the year, but soon after the expiration of the year respondent moved to strike it because not properly verified. This motion was granted by the court, but accompanied with the express condition that appellants should have leave to amend. They did amend the verification by simply stating that the petitioners were nonresidents and not within King county. The petition, so amended, was filed after the expiration of the year from the date of the order admitting the alleged will to probate. Appellants argue with much force that the statute authorizing the contest of wills and outlining the procedure therefor does not require that petitions in such contests shall be verified. It is certain that the statute does not in terms say that a verification is required. We shall not, however, decide that question...