Moore v. Kirkman

• Decision Date: 12 July 1898
• Citation: 54 P. 24,19 Wash. 605
• Parties: MOORE ET AL. v. KIRKMAN ET AL.
• Court: Washington Supreme Court

54 P. 24

19 Wash. 605

MOORE ET AL. v. KIRKMAN ET AL.

Supreme Court of Washington

July 12, 1898

Appeal from superior court, Walla Walla county; Thomas H. Brents Judge.

Action by Miles C. Moore and others, as executors, against William H. Kirkman and others, as executors, to recover on a note of defendants' testator. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Thomas & Dovell, for appellants.

Wm. H Upton and B. L. & J. L. Sharpstein, for respondents.

REAVIS J.

Respondents are executors of the will of Dorsey S. Baker, deceased. On January 19, 1892, William Kirkman, with another, executed his promissory note for $2,500 to respondents, as executors, and on April 25, 1893, he died, a resident of Walla Walla county leaving estate therein, and his last will and testament disposing of his estate, and appointing appellants as executors. The will contained, among others, the following provisions: "I do hereby expressly provide and direct that no bond or other security be required of said executors or any of them, in the execution of their said trust, and that, so far as by law in any case can be done, they be relieved from the supervision and interference and control of all courts, answering only to the tribunal of their own consciences for fidelity in their said office." Provision is also made in the will that the executors take, hold, and be seised and possessed of and vested with the title to the entire estate, for the purpose of carrying into effect the will according to the spirit and meaning thereof, and that the executors act by a majority, and that all contracts, deeds, mortgages, conveyances, bonds, and other transactions in any way pertaining to the estate be as valid and binding as if the testator himself had been living and executed the same, and that in the discretion of the executors they should continue any traffic, business, enterprise, or use in which they found any part of the estate on coming into possession of it, or that they use or employ the estate, or the proceeds of it, in any other business they might regard for its best interests, and that generally the executors are authorized and directed to manage, control, and dispose of the estate as a prudent owner and manager should do. The executors of Kirkman, deceased, on the 27th of May, 1893, published notice to creditors of the estate to present their claims against the deceased, duly verified, with necessary vouchers, mentioning their office in the city of Walla Walla, within one year from the date of the notice. The notice was dated May, 23, 1893. It was duly published, and an affidavit of the publication thereof made. The will was presented for probate, and duly proved and established in the probate department of the superior court. No order was made by the court providing for notice to creditors. On the 23d of November, 1895, the respondents presented the claim to appellants, as executors of the estate of Kirkman, deceased, founded upon the promissory note above mentioned. The claim was rejected by appellants. On the 15th of January, 1896, the respondents commenced this action to recover judgment on the note. The appellants answered, and set up the publication of the notice to creditors, and alleged that the claim of respondents was barred because not presented within one year after the publication of the notice. At the trial the plaintiffs put in evidence the promissory note, and proved its presentation to appellants, and their rejection. Defendants moved for a nonsuit for the reason that it was not shown that the claim was presented within the time or at the place specified in the notice to creditors published, which was overruled. Defendants then offered in evidence the notice to creditors, with the affidavit of publication. Plaintiffs objected to its reception on the ground that it was incompetent, irrelevant, and immaterial, and not a notice authorized by law, and that publication was not authorized by the court. The court sustained the objection to the introduction of the testimony. The jury was dismissed from the consideration of the cause, the facts stipulated by the parties and found by the court as above stated.

Some questions have been made upon the form and date of the notice given to creditors by appellants, as executors of Kirkman deceased; but the controlling question, in our view, is whether appellants, having undertaken to settle the estate without the intervention of the probate court, could give notice to creditors under the probate procedure provided in our statutes, which would limit the presentation of claims to one year from publication of the notice. Section 955, 2 Hill's...