In re Sullivan's Estate

• Decision Date: 16 December 1904
• Citation: 78 P. 945,36 Wash. 217
• Court: Washington Supreme Court
• Parties: In re SULLIVAN'S ESTATE. v. BELL, Judge, et al. CORCORAN et al.

78 P. 945

36 Wash. 217

In re SULLIVAN'S ESTATE.

CORCORAN et al. v. BELL, Judge, et al.

Supreme Court of Washington

December 16, 1904

In the matter of the estate of John Sullivan. Application by Edward Corcoran and others against W. R. Bell, Judge, and others for writ of review. Granted.

J. J McCafferty and J. W. Robinson, for respondent.

HADLEY, J.

This is an application for a writ of review, directed to the superior court of King county, and to the Honorable W. R. Bell, one of the judges thereof. It is asked that certain orders directing payment of money from the estate of John Sullivan, deceased shall be reviewed and quashed. The application further asks that the administrator of said estate and his attorney shall be required forthwith respectively to pay back to said estate the sums of money paid to them under the terms of the orders sought to be reviewed. The affidavit filed in support of the application avers that Edward Corcoran, Samuel H. Piles, and Charles H. Farrell, as administrator of the estate of Hannah O'Callaghan, deceased, are the parties beneficially interested in the application, for the following reasons, to wit: That said John Sullivan died in the city of Seattle on the 26th day of September, 1900; that said Hannah O'Callaghan is one of the heirs and next of kin of said Sullivan, and that she died in the city of Cork, Ireland, on or about the 21st day of May, 1904; that said Charles H Farrell is her duly appointed and qualified fied administrator; that at the time of her death said Hannah O'Callaghan was the owner of an undivided one-fourth of the estate of said Sullivan; that said Edward Corcoran is also one of the heirs and next of kin of said Sullivan; that said Samuel H. Piles is a grantee of said O'Callaghan and Corcoran of an undivided half interest in the said Sullivan estate. It is further averred that on the 1st day of July, 1904, the Honorable W. R. Bell, as judge aforesaid, without notice to any one, and without having acquired any jurisdiction in the premises, made an order directing Terence O'Brien, as administrator of said Sullivan estate, to appropriate out of any moneys or effects of the estate in his hands, as compensation in full for his services as administrator from the 20th day of December 1902, to the 20th day of June, 1904, the sum of $6,300, and that said administrator also pay to himself thereafter the sum of $350 per month out of any moneys in his hands belonging to said estate, until the further order of the court. It is alleged that up to and including January 2, 1903, said administrator had been allowed and paid on account of his commissions as administrator sums aggregating $20,074.16, and that the above-mentioned order, directing him to pay himself $6,300, and also $350 per month thereafter, is for amounts in addition to said $20,074.16; that said estate was appraised at $447,000; and that, outside of a mortgage debt of $60,000, the indebtedness of Sullivan at the time of his death did not exceed $1,000. It is further alleged that, at the same time said court made the abovementioned order for the administrator to pay himself said $6,300, it also ordered the administrator to pay to James J. McCafferty, as his attorney, the sum of $1,700 out of funds of the estate in the hands of the administrator; that by said order the court also fixed the compensation of said McCafferty from the 16th day of February, 1903, to the 16th day of February, 1904, at the sum of $2,400, and credited upon said amount the sum of $1,500 theretofore ordered paid, and which was then and is now involved in an appeal pending in this court; that after crediting said $1,500 there remained $900 of the amount allowed as above for said one-year period; that said order also fixed the compensation of said McCafferty from February 16, 1904, to June 16th of the same year, at $800, and directed it to be paid, together with said $900, making $1,700, as aforesaid; that in said order the court also directed the administrator to pay any necessary expenses connected with the appeal from the $1,500 order above mentioned; that the order was made without notice to any one, and these applicants had no knowledge thereof until the 13th day of July, 1904. It is alleged that the order for the payment of $1,500 as attorney's fees hereinbefore mentioned, as on appeal to this court, was also made without notice, and that, if these repeated allowances without notice to any one continue to be made, the estate will be finally plunged into debt, so that it will be unable from its income to meet the expenses of interest on said $60,000 mortgage, and of taxes and ordinary repairs. It is also made to appear by the affidavit that, prior to the allowance of attorney's fees to said McCafferty, the firm of Pratt & Riddle was paid the sum of $10,000 from said estate on account of fees as attorneys for said administrator. It is further shown that the final settlement of the estate is postponed on account of pending litigation between the persons claiming the estate as heirs and next of kin of said Sullivan, on one side, and one Marie Carrau, on the other; the latter claiming the entire estate under an alleged nuncupative will.

Upon presentation of the affidavit reciting the above facts together with others which we think it is unnecessary to repeat now, an order was by this court directed to respondents, requiring them to show cause upon July 29, 1904, why a writ of review should not be granted for the purpose of effecting a review of the orders above mentioned. At the hearing the respondents argued a motion to discharge the order to show cause, and a demurrer to the application, as being insufficient. It is the position of the applicants that the orders are void, as having been made without jurisdiction, for the reason that they were made entirely ex parte, and without notice of any kind to persons interested as distributees of the estate. The principle involved seems to be so fundamental that citation of authorities is unnecessary. Indeed, the principle is not controverted by the respondents; but they assert that the orders are merely interlocutory, and are neither conclusive nor binding against the right of the distributees to be heard upon final settlement of the estate. The orders are, however, entered in the form of solemn judgments of the court. They show that testimony was heard; that the court made findings that the amounts were reasonable, and unqualifiedly commanded their payment. They bear no evidence that they were entered as mere interlocutory orders, subject to future review by the court upon a full hearing, when all parties should be before it. "Interlocutory' (in law) means that which does not decide the cause, but settles some intervening matter relating to the cause.' 16 Am. & Eng. Enc. of Law (2d Ed.) 1117. These orders purport to be decisive of the matters involved, and leave nothing to be done hereafter in relation to the subject-matter. The argument of respondents being to the effect that the orders are of no binding force, for the reason that they may be reviewed at the hearing upon final settlement of the estate, then why should they be entered as the deliberate judgments of the court, based upon testimony and findings as to facts? In form they at least have the appearance of having been intended to be final and conclusive as to all concerned. Respondents say that our statutes provide for no notice whereby persons interested in an estate may be brought into court for the hearing of matters of this kind, except the notice of final settlement. If that be true, then it is manifest the court cannot acquire jurisdiction to determine them until after such notice has been given, unless all interested parties appear in response to...