McLaughlin v. Barnes

• Citation: 41 P. 62,12 Wash. 373
• Parties: MCLAUGHLIN v. BARNES.
• Decision Date: 23 July 1895
• Court: United States State Supreme Court of Washington

41 P. 62

12 Wash. 373

MCLAUGHLIN v. BARNES.

Supreme Court of Washington

July 23, 1895

Appeal from superior court, King county; T. J. Humes, Judge.

Appeal by John G. Barnes, administrator, in the matter of the estate of Hiram C. McLaughlin, from an order directing the payment to Bertha F. McLaughlin of the balance of her distributive share in the estate. Affirmed.

Hoyt C.J., dissenting.

John G Barnes, in pro. per. Greene & Turner, for respondent.

GORDON J.

Appellant is administrator of the estate of Hiram C. McLaughlin deceased. As such administrator, he presented his final account to the superior court of King county for settlement and allowance, from which account it appeared that there was chargeable to him, and then in his hands as such administrator, ready to be distributed to the respondent, the sum of $1,554.56, and, pursuant to his petition in that behalf, said court, on the 7th day of September, 1894, made and entered a final decree of distribution. Thereafter appellant paid to respondent's order the sum of $1,054.56, retaining and refusing upon demand to pay the balance of $500. On the 20th day of October, 1894, respondent applied to the court for an order directing the administrator forthwith to turn over said balance. A copy of said application and the affidavit upon which it was based were, on the same day, served upon appellant, and came on for hearing before the court on the 26th day of October, 1894, at which time the appellant submitted his affidavit, which set forth, as a reason for withholding and refusing to pay over said balance, "that the said Bertha F. McLaughlin was indebted to [appellant] in said sum of $500, for and on account of legal services performed by [appellant] for said Bertha McLaughlin, at her request, as her attorney and counselor, which services were performed by [appellant] for said Bertha F. McLaughlin, independent of his administration of said estate, and before he was appointed administrator or became administrator thereof; that on the 24th of October, 1894, he duly assigned, transferred, and set over to one E. B. Palmer his claim against said Bertha McLaughlin for said sum of $500 for services as aforesaid; that on the 25th day of October, 1894, the said sum of $500 in his hands as aforesaid was duly and regularly lawfully levied upon and attached by the sheriff of King county, state of Washington, in a suit at law upon said assigned claim in the superior court of the state of Washington, for King county, wherein the said Palmer is plaintiff and the said Bertha F. McLaughlin is defendant." Findings of fact were duly made by the court, and an order entered directing the appellant to pay said sum of $500 to the respondent within 10 days from the date thereof. This appeal is from said order.

The first contention of the appellant is that the decree of distribution of date September 7, 1894, changed the liability of the administrator to the distributee from "an official to a personal one"; that after the entry of the decree of distribution the relationship existing between the administrator and the respondent, as to the money and property distributed, was that of debtor and creditor and that respondent had a right to bring her action to recover from the administrator the property...