In re Upton's Estate

• Decision Date: 06 July 1939
• Docket Number: 27457.
• Citation: 199 Wash. 447,92 P.2d 210
• Court: Washington Supreme Court
• Parties: In re UPTON'S ESTATE. v. UPTON. SMALTZ GLOVE CO. et al.

92 P.2d 210

199 Wash. 447

In re UPTON'S ESTATE.

SMALTZ GLOVE CO. et al. v. UPTON.

No. 27457.

Supreme Court of Washington

July 6, 1939

Department 2.

Proceeding in the matter of the estate of Ralph R. Upton, deceased wherein the Smaltz Glove Company, a corporation, and Clifton Robinson, filed a petition for annulment of letters, of administration issued to Charles Millar Upton. From an order denying a motion for a new trial, the petitioners appeal.

Order affirmed.

Appeal from Superior Court, King County; John A. Frater, judge.

Eggerman & Rosling and W. S. Greathouse, all of Seattle, for appellants.

Bennett Hoffman and Rummens & Griffin, all of Seattle, for respondents.

GERAGHTY Justice.

Ralph R. Upton and his wife, Anna, residents of Seattle, sustained fatal injuries in an automobile accident in the state of Indiana; the husband died August 3, 1935, and the wife on the following day.

The husband left a will in which his wife was named as executrix. August 6, 1935, Charles Millar Upton, a son, filed his father's will in the superior court of King county accompanied by his petition, reciting the death of the testator and of the executrix named in the will, and requesting that he be appointed administrator questing that he be appointed administrator

Notice that the application for letters of administration would be heard by the court August 16, 1935, was posted, and, on the day named, the court made an order admitting the will to probate and appointing the petitioner as administrator with the will annexed. The administrator qualified by taking his oath and filing a bond in the sum of two thousand dollars, as fixed by the court.

March 19, 1936, the court made an order authorizing the administrator to institute action in the appropriate court in the state of Indiana to recover damages for the death of Ralph R. Upton, against 'whomsoever may be or have been responsible for the cause of such damages to property and for said death.'

Subsequently the administrator instituted an action against Smaltz Glove Company and Clifton Robinson in the District Court of the United States, for the Northern Division of Indiana, for the recovery of damages on account of the death of his father. The defendants in that action filed a plea in abatement, challenging the right of the plaintiff to sue, in that he was not a legally appointed administrator of the decedent's estate.

December 28, 1937, Smaltz Glove Company and Robinson, defendants in the Indiana action, filed a petition in the probate proceeding for annulment of the letters issued to the administrator, alleging: 'That in the above captioned probate proceeding in this court no notice in conformity with the requirements of Section 63, Laws of 1917, page 67 [657], Remington Revised Statutes, § 1433, was given of hearing on the petition for letters of administration with the will annexed filed on behalf of Charles Millar Upton, and that persons interested in said estate were not advised ten days prior to the hearing by the posting of notices in three public places of such hearing; that instead of posting notices for a period of ten days Before the time fixed for such hearing, notices were in fact posted on the 7th day of August, 1935, and the hearing was set and held on the 16th day of August, 1935.'

A citation was issued, and the petition set for hearing January 19, 1938. At the conclusion of the hearing held on that day, the court expressed the opinion that, while the request for cancellation of the letters was technical in nature, there was, nevertheless, a jurisdictional defect, and the court would reluctantly grant the petition.

A motion for new trial was made by the administrator and, subsequently, February 5, 1938, the court, in a memorandum opinion, stated: 'Since then, a motion for a new trial has been filed, and after consideration of the arguments for and against and of the authorities cited, this court is of the opinion that in proceedings similar to this the superior court of this state, being a court of general jurisdiction, acquires jurisdiction when a properly verified petition is filed, and that irregularity in the posting of notice or of making a return thereof does not vitiate or void an appointment of an administrator or of the issuance of letters of administration to him. The court, not having signed an order in support of its oral announcement, will therefore treat the motion for a new trial in the light of a motion for reconsideration and holds that the relief prayed for in the citation must be overruled and denied.'

An order denying the motion was entered, and the petitioners have appealed.

Section 1433, Rem.Rev.Stat., provides that, when a petition for letters of administration or for letters with the will annexed is filed by anyone other than a surviving spouse, the clerk must give notice thereof by causing notices to be posted in at least three public places, one of which must be at the place where the court is held, containing the name of the decedent, the name of the applicant, and the time at which the petition will be heard. The notice is to be given at least ten days Before the time fixed by the clerk for the hearing.

The clerk fixed the sixteenth of August for the hearing on the petition. Excluding the day of posting and including the day fixed for the hearing (Rem.Rev.Stat. §§ 150, 252), the full ten-day notice would require posting on August 6th.

Section 1372, Rem.Rev.Stat., requires the clerk to keep in his office certain books of record for probate matters, one such book, ordinarily referred to as the appearance docket, being 'A memorandum of the files * * * and the date of filing each paper.' This appearance docket in the clerk's office shows an entry noting the filing of three papers in the matter of the estate of Ralph H. Upton on August 6, 1935: (1) The will, (2) petition for probate of the will and appointment of administrator with the will annexed, and (3) notice of hearing with affidavit of poster attached. The notice of hearing with affidavit of poster attached also bears the clerk's endorsement of filing as of August 6, 1935.

The affidavit of poster attached to the notice was made by Kenneth Griffin, a deputy in the clerk's office, and recites that three copies of the notice of hearing were posted by him on August 7, 1935. The affidavit of poster, showing that only nine days' notice of the hearing was given, is the basis of appellants' petition for revocation of the order appointing the administrator.

This proceeding is a direct attack upon the order. The court having acquired jurisdiction of the estate in probate, the order of appointment was not subject to collateral attack. Conceding this, the appellants say in their brief, 'Had the appointment...