Prefontaine v. McMicken

• Decision Date: 03 December 1896
• Citation: 16 Wash. 16,47 P. 231
• Parties: PREFONTAINE v. MCMICKEN ET AL.
• Court: Washington Supreme Court

47 P. 231

16 Wash. 16

PREFONTAINE v. MCMICKEN ET AL.

Supreme Court of Washington

December 3, 1896

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

Proceeding by F. X. Prefontaine, as executor of the last will and testament of Margaret Harmon, deceased, against Maurice McMicken, administrator de bonis non of the estate of Sarah M. Renton, deceased, and others, to sell real estate for the payment of debts against the estate. From an order to sell the realty, defendant Mary A. Gaffney appeals. Reversed.

Richard Saxe Jones and Brinker, Jones & Richards for appellant.

Bausman Kelleher & Emory and Blaine & De Vries, for respondent.

ANDERS J.

This was a proceeding in the superior court of Kitsap county, as a court of probate, to subject to sale certain real estate claimed to belong to the estate of Sarah M. Renton, deceased for the payment of a debt against said estate, which had been reduced to judgment. The respondent F. X. Prefontaine filed a petition in said court, setting forth in substance, among other things: That on May 12, 1890, Sarah M. Renton died intestate in said county, except as to certain community property previously disposed of by contract between herself and her husband, leaving an estate therein, and that her only heirs at law were her husband, William Renton, and her daughters, Elizabeth W. Sackman and Mary A. Gaffney. That on July 14th following, William Renton, her husband, was appointed and duly qualified as administrator of her estate. That on May 21, 1891, said William Renton, as administrator of said estate, filed his petition in said superior court praying for a distribution of all the property owned by the said Sarah M. Renton at the time of her death, in proportions provided for in a certain agreement between said William Renton and Elizabeth W. Sackman and Mary A. Gaffney, and stating that the said estate of Sarah M. Renton, deceased was free from debt; that there were no claims of any kind against the same. That thereafter citations were issued to all persons concerned, in the manner provided by law, and were duly served on the respondents Elizabeth W Sackman and Mary A. Gaffney, and notice of the hearing of said petition was duly given as provided by law; and that on the 26th day of June, 1891, a hearing was had, "all persons interested being present in person or by attorney," and a decree was entered in accordance with the prayer of the petition, which decree purported to distribute all the property of Sarah M. Renton, deceased, in the manner and in the proportions agreed upon in the contract above mentioned. That the decree provided, among other things, that the said Elizabeth W. Sackman and Mary A. Gaffney should make, execute, and deliver to William Renton, as such administrator, a bond in the penal sum of $5,000, in accordance with section 1576 of the Code of Washington, conditioned for the payment of any claims or debts that might thereafter be presented against the said estate of said Sarah M. Renton, deceased. That thereafter, and on July 18, 1891, said William Renton died in said Kitsap county, of which he was then a resident, leaving an estate therein. That on December 2, 1891, the respondent John A. Campbell was appointed executor of his last will and testament, and thereupon qualified, and ever since has been and now is the duly qualified and acting executor of said last will and testament. That on said December 2, 1891, Maurice McMicken was appointed administrator de bonis non of the estate of Sarah M. Renton, and thereupon duly qualified, and ever since has been and now is the duly acting and qualified administrator of said estate. That on July 5, 1893, petitioner, as executor of the last will and testament of one Margaret Harmon, deceased, recovered a judgment in the superior court of King county against Maurice McMicken, administrator as aforesaid, and John A. Campbell, as executor of the will of William Renton, in the sum of $2,808.84, with interest and costs. That no part of said judgment has been paid. That prior to the death of William Renton all the personal property belonging to the estate was distributed among the heirs at law of said Sarah M. Renton, and that none of said personal property, and none of the rents, issues, or profits thereof, has ever come into the custody or control of said Maurice McMicken as administrator, and that there is no property in the hands of said McMicken, as such administrator, with which to pay the said judgment. That the petitioner has demanded of the said McMicken that he, as such administrator, should institute proceedings for the sale of sufficient of the real property of the estate of Sarah M. Renton, deceased, to pay the debts thereof, but that he has refused, and still refuses, to institute such proceedings, or to make any payment on account of the said judgment recovered against him as such administrator; and that a sale of the whole or a portion of the real property of said estate is necessary for the purpose of paying the judgment recovered against said estate by petitioner. The petition also sets out a description of the property embraced in the inventory and in the petition for distribution filed by William Renton as administrator of the estate of Mrs. Renton. The petitioner, in his petition, asked for an order of the court, directed to all the respondents, to show cause, in the manner and at the time and place provided by law, why an order should not be issued directed to said Maurice McMicken, as administrator de bonis non of said estate, commanding him, as such administrator, to sell the real property of said estate of Sarah M. Renton, or so much thereof as should be necessary to pay the said judgment in favor of the petitioner. The court granted an order directing the parties in interest to show cause why the petition should not be granted, and, at the time and place appointed for the hearing, the appellant, Mary A. Gaffney, appearing by her counsel, objected to the granting of the order prayed for by petitioner...