Scammon v. Ward

• Decision Date: 28 February 1890
• Citation: 1 Wash. 179,23 P. 439
• Parties: SCAMMON v. WARD.
• Court: Washington Supreme Court

23 P. 439

1 Wash. 179

SCAMMON v. WARD.

Supreme Court of Washington

February 28, 1890

Appeal from district court, Klickitat county.

William G. Ward, during his life-time, made his promissory note in favor of Justin Scammon for $1,500, and secured the payment thereof by a mortgage on certain real estate. Said William G Ward died, and on the 22d day of August, 1887, Elizabeth Ward, his widow, was appointed executrix of his will, and qualified as such on the 27th day of said month. Soon thereafter she published the notice to creditors to present their claims against the estate, as required by Code Wash. § 1465. Scammon did not present his claim to said executrix within a year after such notice, but on the 4th day of October, 1889, began this proceeding under sections 1523, 1524, of the Code of Washington, asking that the mortgaged property be sold to satisfy the mortgage debt, or in case the court should find it to be beneficial to the estate, and not injurious to creditors, that said executrix be ordered to redeem the same. Code Wash. § 1467, referring to the notice to creditors to present their claims, required to be given by section 1465, provides that "if a claim be not presented within one year after the first publication of the notice, it shall be barred." Sections 1523 and 1524 are as follows "Sec. 1523. If any person die, having mortgaged any real or personal estate, and shall not have devised the same, or provided for the redemption thereof by will, the probate court, upon the application of any person interested, may order the executor or administrator to redeem the estate out of the personal assets, if it should appear to the satisfaction of the court that such redemption would be beneficial to the estate, and not injurious to creditors." "Sec. 1524. If such redemption be not deemed expedient, the court shall order such property to be sold at public sale, *** and the purchase money, after paying the expenses of the sale, shall first be applied to the payment and discharge of such mortgage, and the residue in due course of administration. If said sale of the mortgaged premises shall be insufficient to secure the mortgage debt the mortgagee shall file a claim for balance, authenticated as other claims, and payable in due course of administration." The probate court denied Scammon's application to redeem or sell the land under the above sections. On appeal the district court allowed the application, and from this ruling the executrix appeals.

W. B. Presby, for appellant.

Bennet & Wilson and H. Dustin, for appellee.

SCOTT, J.

Plaintiff instituted this proceeding in the probate court of Klickitat county under sections 1523 and 1524 of the Code, to require said executrix to redeem certain lands from the lien of a mortgage given to plaintiff by William G. Ward, who died in June, 1887, leaving a will. In August, 1887, the probate court of said county admitted said will to probate, and appointed defendant executrix thereof. A notice to creditors was duly published under Code, § 1465, in September, 1887. The claim secured by the mortgage was not presented to the executrix. The lands covered by it were a part of Ward's estate at the time of his death, but were not devised by him nor was their redemption provided for in the will. In October, 1889, after the time for presenting claims against the estate had elapsed, Scammon commenced this proceeding. He sought for no relief except as against the land mortgaged. Defendant resisted the application upon two grounds: (1) That the mortgaged debt was barred by reason of its not having been presented within the year, as provided by section 1467 of the Code; (2) that if the claim was not barred the plaintiff could not apply to the probate court after the expiration of said year without having presented his claim within the time prescribed. The probate court sustained the objections, and the plaintiff appealed...