Kromer v. Friday

• Decision Date: 14 January 1895
• Citation: 10 Wash. 621,39 P. 229
• Parties: KROMER ET AL. v. FRIDAY ET AL. (EVERETT LAND CO., INTERVENER.
• Court: Washington Supreme Court

39 P. 229

10 Wash. 621

KROMER ET AL. v. FRIDAY ET AL. (EVERETT LAND CO., INTERVENER.

Supreme Court of Washington

January 14, 1895

Appeal from superior court, Snohomish county; John C. Denney, Judge.

Action by Victor E. Kromer and others, infants, by L. H. Cyphers their guardian ad litem, against Frank P. Friday and others. The Everett Land Company intervened. From a judgment dismissing their complaint, plaintiffs appeal. Affirmed.

Ronald & Piles, A. F. Burleigh, and Lichtenberg Shepard & Lyon, for appellants.

Crowley, Sullivan & Grosscup, A. D. Austin, and Brown & Brownell, for respondents.

SCOTT J.

The plaintiffs have appealed from a decree of the superior court of Snohomish county dismissing their complaint, and adjudging, in effect, that they have no title to the property in controversy, which is a certain tract of land of about 147 acres, in the present city of Everett. The complaint set up title in fee in the plaintiff Victor E. Kromer, with subsidiary interests for a limited period in his three sisters, Emma and Mattie Kromer, who were joined as plaintiffs, and Alice Kromer, who declined to join as plaintiff, and was made a defendant. The title is claimed by the plaintiffs through their deceased father, Erskine D Kromer, by will. The complaint attacks, and seeks to vacate on the grounds of lack of jurisdiction and fraud, a decree of sale and deed in partition in said court under which the defendants Rucker and Hewitt and the Everett Land Company, intervener, claim title in fee to certain interests in said lands, and joins the defendants Friday, Holland, and Plaskett, on account of their connection with said partition and participation in the alleged fraudulent proceedings. The answers of the defendants Rucker and Hewitt, with their counterclaims, and the intervening complaint of the Everett Land Company, set up the validity of the partition proceedings which originated in an alleged community right in the lands in controversy in the widow of Erskine D. Kromer, who is the defendant Emma Holland. The material facts relating to the matters in controversy are as follows: On May 3, 1870, said Erskine D. Kromer made a homestead filing upon the land aforesaid, situate in Snohomish county, Wash. It is claimed that he was at that time a single man, but at or about said time (the exact time not being material) a certain Indian woman, who had previously been known by the name of Emma Kanouke, and who was thenceforth known as Emma Kromer, came to live with him as his wife, and continued to live with him until his death, in 1885. The plaintiffs and said Alice Kromer are their children. On October 26, 1876, said Erskine D. Kromer made the requisite proofs of his capacity to file and compliance with the laws of the United States relating to such homestead entry. On December 21, 1876, he and said Indian woman appeared before a justice of the peace of said county, and had a marriage ceremony performed. On December 30, 1876, a patent for said land was issued to him. At his death he left the following will, purporting to devise the land in controversy: "I will, bequeath, and devise to my beloved son, Victor E. Kromer, the land upon which myself and family reside, situate in said county of Snohomish, Washington Territory, to wit, lots numbered one and two, the southeast quarter of the northwest quarter, and the northwest quarter of the northeast quarter of section thirty, in township twenty-nine north, of range five east, containing one hundred and forty-seven acres and 55.100 of an acre. It is my will and desire that my family be not separated, and it is my intention that my said son, Victor E. Kromer, shall not sell or dispose of said described premises until each of my daughters shall become of full age, viz. Alice Kromer, Mattie Kromer, and Emma Kromer, and that they shall each have the privilege of residing upon said premises until they shall each become married, provided they should marry before they shall have arrived at the age of majority; and it is my desire that the rents, issues, and profits of said described premises shall go to support my said son and daughters, hereinbefore mentioned, until said girls shall have become married or arrived at the age of majority, at the expiration of which time my said son, Victor E. Kromer, is hereby empowered to dispose of said premises as he shall see fit. *** Third. I give and bequeath unto my wife, Emma Kromer, the sum of two hundred dollars, which my executor is hereby authorized to pay at my death. And it is my will and desire that my said wife, Emma Kromer, reside upon the premises hereinbefore mentioned and bequeathed to my said son, Victor E. Kromer, until her death or marriage. *** I nominate and appoint my respected friend J. H. Plaskett my executor, and authorize him to administer upon my estate, and to execute this will, without giving bond, and without any direction or control from any court, and without notice to creditors or otherwise." This will was probated September 10, 1885. Said J. H. Plaskett qualified as executor, and a copy was filed in the auditor's office for record in October, 1885. On September 23, 1885, said Plaskett was appointed guardian of the persons and property of said children, and has ever since served as general guardian of their persons and property. On October 25, 1886, the final account of said Plaskett as executor was allowed by the probate court, and distribution made of the real and personal property willed by the deceased. There is some contention as to whether the widow was a party to this proceeding, but we do not regard it as material, and the plaintiffs practically concede that it is not. On December 14, 1889, said Plaskett, as guardian, filed a petition in the probate court, praying for the sale of the real estate in controversy, alleging such facts as the statute required to authorize a sale by a guardian of his minor ward's real estate. It was claimed that the real estate was unproductive, and that there were no funds to pay the taxes thereon or to support the children, and that it would be for the advantage of said children to have the same sold. Upon the hearing of this petition, on January 27, 1890, the widow of Erskine D. Kromer, who had previously to that time married one Holland, appeared and filed objections to the order, and asked for partition, claiming, among other things, that the land in controversy was community property of herself and said Erskine D. Kromer, and that she was entitled to one-half thereof, as the surviving spouse. The probate court found against her, and entered an order directing a sale of all of the land. On January 28, 1890, she filed a notice of appeal from said order and judgment of the probate court. This appeal was heard in the superior court of Snohomish county on the 24th day of March, 1890, whereupon the court found and adjudged as follows: "The court finds that the real estate described in the petition of said guardian for an order of sale thereof, and which said probate court ordered to be sold as prayed for in said petition, is community property, and, as such, the said appellant Emma Holland, formerly widow of Erskine D. Kromer, deceased, is entitled to the undivided one-half thereof; and that the said probate judge or probate court had no right to order the sale of the entire property, or any part thereof, in the manner in said transcript shown. It is therefore ordered, adjudged, and decreed by this court that the order of sale and judgment rendered by said probate court below is reversed, set aside, and held for naught." But the court made no finding or order as to a partition.

It is contended that the court could not have found upon the facts that said parties were husband and wife prior to the marriage ceremony which was performed between them by the justice of the peace, and that said ceremony was evidence that they were not married prior thereto. There is no doubt that it was some evidence of the fact that the parties had not been previously married, but it was not conclusive. Said parties may possibly have entertained a doubt as to the validity of a previous ceremony, and may have wished to set that doubt at rest by such subsequent ceremony. It does appear that they had lived and cohabited together, and held each other out as husband and wife, for a number of years. It is true this would not constitute a marriage under the laws of the territory, but it was some evidence of marriage; and, in making his homestead proofs, said Kromer testified that he was the head of a family, and submitted the affidavits of two of his neighbors that he was a married man. The parties were all before the probate court in said proceeding, brought by the guardian for authority to sell the land for the purposes therein set forth, for a better investment of the proceeds etc., and were likewise before the superior court upon the appeal therefrom by the widow; and the court having found therein that said Erskine D. Kromer and said woman with whom he was living were lawfully married, and that the land was the community land of said parties, and there having been no appeal prosecuted therefrom, that decree must stand, if the court had jurisdiction to make the finding. And it would make no difference whether it was an erroneous finding of fact or of law. It would be the law of the case as applied to the lands in question, and conclusive upon the parties. The jurisdiction of the court to find that said parties were husband and wife, and that the land was community property, is strenuously attacked by the plaintiff, and contended for by the defendants. It raises a most important question as to the power of the former probate courts of the territory and of the superior courts of the state upon such appeal. The fact...