Shufeldt v. Hughes

• Decision Date: 11 October 1909
• Citation: 104 P. 253,55 Wash. 246
• Parties: SHUFELDT et al. v. HUGHES.
• Court: Washington Supreme Court

104 P. 253

55 Wash. 246

SHUFELDT et al. v. HUGHES.

Supreme Court of Washington

October 11, 1909

Department 1. Appeal from Superior Court, King County; Geo. E. Morris Judge.

Accounting by Edwin Hughes, executor of Henry H. Shufeldt. Emeline M Shufeldt and others filed objections which were overruled and the objectors appeal. Reversed and remanded, with directions.

Revelle, Revelle & Revelle, for appellants.

Chas. F. Munday, for respondent.

GOSE J.

This appeal is prosecuted from a decree, approving the final account of the respondent and allowing executor's and attorney's fees. The testator, a resident of the state of Wisconsin, died on November 13, 1906. The will was admitted to probate in the county court of Waukesha county, Wis., on the 18th day of December following. A copy of the will and of the original record of probate, authenticated as required by law, was filed in the superior court of King county, and admitted to probate on January 31, 1907. The order admitting the will to probate in pursuance of the provisions of the will, the other executor therein named being a nonresident, appointed the respondent as sole executor, and directed that letters testamentary issue to him upon his taking and subscribing an oath as provided by law. The oath was taken by the respondent on the day of the date of the order. Thereupon notice was given to creditors, an inventory was filed, the estate was appraised, and the execution of the will proceeded in the usual and ordinary way. On March 25, 1908, the final account was filed, with a petition and prayer that it be settled and allowed. On the day following an order was entered fixing the 16th day of April as the time for the hearing and settlement of the account, and directing the proper notice to be given. On May 28th Emeline M. Shufeldt, the widow of the testator, filed her objections to the account. On July 9th following William B. E. Shufeldt filed a statement, uniting in such objections. The substance of the objections was (1) that under the will it was the duty of the executor to report to the county court of Wisconsin where the will was first probated; (2) that it is a nonintervention will, the respondent acting as trustee, and that he is not entitled to the statutory commission as executor; (3) that the respondent agreed to accept a flat salary in lieu of the statutory compensation. The prayer was that the account be disallowed, and that no compensation in excess of $500 be allowed, either to the executor or to his attorney. On June 1, 1908, the executor answered, joining issue upon the objections. On August 28th following the executor filed his supplemental account, and a hearing was had upon the account and the supplemental account, and on August 29th following a decree was entered settling and allowing the same. The decree recited: 'Emeline Shufeldt having filed herein her objections to said account, and on July 7, 1908, W. B. E. Shufeldt having filed herein objections to said account, and on August 28, 1908, said executor having filed his answer thereto duly verified, and said executor having filed herein an account supplementary to his said final account, showing all his receipts and disbursements from the date of his said final account down to and including this date, and said matter having come regularly on to be heard on August 28, 1908, at 1:30 o'clock p. m., said executor appearing in person and by Chas. F. Munday, his attorney, and no one appearing in behalf of said objectors, or either of them, and no testimony or other proof being offered on behalf of said objectors, or either of them, in support of their said objections, and said objections being abandoned, it is now ordered that said objections and each and every of them, be, and the same hereby are, overruled'--and fixed the executor's commission at $25,251.75, less whatever sum he had theretofore received on account thereof, and fixed the attorney's fees at $12,500, less the sum of $1,750, theretofore paid, and directed the executor to pay the same. On September 17th following the objectors filed a motion to vacate the decree, which was heard and granted on the 28th day of September. The order granting the motion to vacate recited: 'It is now by the court, after due consideration, ordered that said decree so made and entered on August 29, 1908, be and the same is hereby vacated and set aside, upon condition, however, that the executor, Edwin Hughes, be allowed credit in his account for any and all disbursements which he has made subsequent to August 29, 1908.' After a hearing on the account, and on January 16, 1909, a decree was entered, overruling the objections, and fixing $13,000 as reasonable compensation for the services of the attorney for the executor, and fixing the commission of the executor at $25,553.25, the statutory commission, less whatever sum he had theretofore received on account thereof, and directing the executor to pay such sums.

The will, so far as is necessary for a proper understanding of the case, is as follows:

'2. All the residue of my estate, real and personal, I devise and bequeath to my wife, Emeline M. Shufeldt, to have and to hold for her own use during her life; and I do authorize her, as her own best judgment may dictate, to sell, exchange or dispose of all live stock, all perishable property and all articles subject to become useless or worthless by the ordinary use and wear thereof, without accounting, by her or her estate to any residuary legatee herein designated for any portion thereof; also I do authorize her to collect, exchange or sell any stocks, bonds, notes, mortgages, or other assets, and to reinvest the proceeds thereof in income-bearing property for the benefit of my estate.

'3. Upon the decease of my said wife, if she survive me, or upon my decease if she do not survive me, I give and bequeath all my estate, not hereinbefore specifically devised, as follows:

'A. To my daughter, Mary Shufeldt Hartshorne, or to her issue if she be then deceased leaving issue, the sum of fifty thousand dollars, to be paid from my personal estate.

'B. To my daughter, Emeline Shufeldt Hughes, a half interest, during her life, in the income and proceeds of the lots and building known as the Butler Block, in the city of Seattle, state of Washington.

'C. I do hereby will and bequeath the said Butler Block and the lots upon which it stands to my son, William B. E. Shufeldt and my son-in-law Edwin Hughes, to have and to hold the same to them and their assigns forever, in trust, for the uses and purposes as follows:

'During the life of my wife Emeline M. Shufeldt, the said trustee shall pay to her the net income from said block, as per article number 2 of this will. * * *

'If either of said trustees refuse to accept said trust, or be rendered incapable by death or other causes to fulfill the same, then I direct a trustee be appointed in his stead by the court probating this will and settling my estate, and such trustee shall have all the title and power herein conferred upon either trustee herein named. * * *

'I nominate my son, William B. E. Shufeldt, and my brother-in-law, Samuel E. Egan, to be executors of this will.'

By a codicil the nomination of Samuel E. Egan was revoked, and in his place Edwin Hughes was nominated as executor.

The appellants urge three propositions, viz.: (1) That the court had no jurisdiction to enter a decree; (2) that the executor is not entitled to a commission; and (3) that the attorney's fees allowed by the court are excessive. We will consider these points seriatim.

In support of the first proposition it is argued that it was the intention of the testator upon his death to vest in the trustees named in section 'C' of the will the legal title and possession of the property known as the Butler Block, and that the management of the property is cognizable only in a court of equity, citing Smith v. Smith, 15 Wash. 239, 46 P. 249; Moore v. Kirkman, 19 Wash. 605, 54 P. 24; State ex rel. Phinney v. Superior Court, 21 Wash. 186, 57 P. 337; City of Seattle v. McDonald, 26 Wash. 98, 66 P. 145; and Martin v. Preston, 49 Wash. 288, 94 P. 1087. In the Moore, Phinney, and McDonald Cases the will expressly provided that the executors should execute the will without the intervention of the probate court. In the Smith Case the entire estate was devised to the executors in trust for certain specified uses. In the Martin Case the will, devising to a daughter 'the one-half of the proceeds of lots when sold of the undivided one-third interest of lots in Pullman unsold at my death,' and to a son, 'the one-half of proceeds of lots when sold, of the undivided one-third of Pullman lots unsold at my death, his share of said proceeds to be invested to make a fund for him when he becomes of age,' and providing: 'I do hereby designate and appoint my brother Miles C. Moore the executor of this my last will and testament. I do hereby request and expressly provide and direct that no bond or other security be required of him, and so far as by law in any case can be done he be relieved from the supervision and control of all courts'--was construed to be a nonintervention will, with the power of sale in the executor. In the instant case, in the original will one of the executors was not named as a trustee, and there is nothing in the will indicating an intention in the testator to make the will a nonintervention one, but there is express language showing his intention to have the will regularly probated. Such intention is found in the words heretofore quoted, viz.: ...