Smith v. Fitch

• Decision Date: 12 August 1946
• Docket Number: 29880,29881.
• Citation: 25 Wn.2d 619,171 P.2d 682
• Parties: SMITH v. FITCH (two cases).
• Court: Washington Supreme Court

171 P.2d 682

25 Wn.2d 619

SMITH v. FITCH (two cases).

Nos. 29880, 29881.

Supreme Court of Washington

August 12, 1946

Department 2

Actions consolidated for trial, by Joseph B. Smith, as guardian ad litem of William S. Smith, a minor, and as guardian ad litem of the person and estate of Emilyn E. Smith, a minor, against Henry M. Fitch, as executor of the estate and will of Matilda F. Fitch, deceased. Judgments for plaintiff, and defendant appeals.

Judgment in the case of Emilyn E. Smith reversed with direction to dismiss the action, and judgment in the case of William S Smith modified and cause remanded with instructions.

Appeal from Superior Court, King County; Calvin S. Hall, judge.

Wright & Wright and Douglas D. Mote, all of Seattle, for appellant.

Lundin & Barto and Joseph B. Smith, all of Seattle, for respondent.

JEFFERS, Justice.

Joseph B. Smith, as guardian ad litem of William S. Smith, a minor instituted an action against Henry M. Fitch, as executor of the estate of Matilda F. Fitch, deceased, and at the same time Mr. Smith, as guardian of the person and estate of Emilyn E. Smith, a minor, instituted another action against such executor. We shall hereinafter refer to the action brought on behalf of William S. Smith as the William Smith cause of action, and to the other suit as the Emilyn Smith action. Both actions were commenced about June 14, 1945.

The complaints in both actions were undoubtedly based on the theory that the minors were general creditors of Matilda Fitch, and pursuant to such theory, it is alleged in the Emilyn Smith case that after the death of Matilda Fitch, and on May 11, 1945, the plaintiff filed a claim against her estate in the sum of $193.75, which claim was, on May 21 1945, rejected by the defendant executor. Subsequently this action was brought.

The complaint in the William Smith action alleged that on May 11, 1945, the plaintiff served on the attorney for the executor and filed with the estate of Matilda Fitch a claim for $1,090, which claim was rejected by the executor on May 21, 1945. Thereafter the William Smith action was commenced.

The answer of the executor in each case denied that the estate of Matilda Fitch was indebted to the minors in any sum whatsoever, and alleged affirmatively that no claim on behalf of either of the minors was served or filed until May 12, 1945.

The two actions were consolidated for the purpose of trial, and came on for hearing Before the court on October 25, 1945. Plaintiff called three witnesses, to-wit: Joseph Smith, the father of the two minors, William Sidney Smith (the same person as William S. Smith), and Jean Dieter, a sister of Matilda Fitch, deceased.

When the claims above referred to were introduced in evidence by plaintiff, it appeared therefrom that instead of having been served and filed on May 11, 1945, as alleged in the complaints, they were neither served nor filed until May 12, 1945. It also appearing that the notice to creditors of the estate of Matilda Fitch had been published the first time on November 11, 1944, defendant executor moved for a dismissal of the actions, for the reason that the claims had not been served and filed within the time required by Rem.Rev.Stat., § 1477, and that therefore no recovery could be had in either action based on such claims.

Section 1477, supra, provides in part that any person having a claim against a deceased shall serve the same on the executor or administrator, or his attorney of record, and file with the clerk of the court, together with proof of such service, within six months after the date of the first publication of notice to creditors.

We are satisfied that under the interpretation given to Rem.Comp.Stat., § 1477 (now Rem.Rev.Stat. § 1477), in the case of Davis v. Shepard, 135 Wash. 124, 237 P. 21, 41 A.L.R. 163, the above claims were not served or filed within the six months period, and were barred, and that no recovery could have been had based on such claims. Counsel for plaintiff in effect so admitted, for after the above motion to dismiss was made, he stated to the court: 'If the Court please, I have gone over the records in connection with this matter and am of the opinion this morning that the time within which this claim [referring to both cases] might have been filed expired midnight on the 11th of May, 1945. I cannot come to any other conclusion.'

At this time all of plaintiff's evidence in both cases had been presented. Counsel for plaintiff then stated: 'But there is another factor in this case [William Smith case] which puts an entirely different complexion on it, and that is this. The records in this case show William Sidney Smith volunteered for service in the United States marines in 1943. You will recall he was in Alaska at the time of his mother's death and flew down, and he is still in the marines now. He is under the protection of the provisions of the Soldiers' and Sailors' Relief Act, which absolutely tolls this statute.'

After argument, counsel for plaintiff continued: 'It is the law of this state in the trial of a cause the pleadings may be amended to conform to the proof and the plaintiff so move in this case. The proof in this case shows the existence, or the creation, of a trust in favor of these children.'

Counsel for defendant executor contended that, under the facts in this case, the Soldiers' and Sailors' Relief Act, 50 U.S.C.A.Appendix, § 501 et seq., had no application to William Smith, as he had been in Seattle since October 31, 1944, which was shortly after the death of his mother, Matilda Fitch, she having passed away on October 28, 1944, he was within the jurisdiction of the court, had filed a claim and was represented by his guardian ad litem, and could not now claim the protection of the act.

It may also be stated that at the time of the trial, it appearing that William Smith had become twenty-one years of age, he was substituted as plaintiff in the action brought by his guardian ad litem.

After some extended argument of counsel, the court stated: 'I would hold the Act [Soldiers' and Sailors' Relief Act] would apply to the claim of the young man and I would hold further that the trust fund that was turned over to the deceased did not become a part of the estate. The relation of debtor and creditor didn't exist between them and there was no necessity for filing a claim in that estate. I will direct judgment for each of the plaintiffs.'

Mr. Mote, attorney for defendant, then stated: 'Just a minute, you are granting an amendment on a different theory,' to which the court replied: 'It is not what I am doing. I have done it.'

Defendant stood on his motion and offered no proof.

The trial court entered separate findings of fact, conclusions of law and judgment in each case. In the Emilyn Smith case the court found that Emilyn was the daughter of Joseph B. Smith, plaintiff, and Matilda F. Fitch, formerly Matilda Smith; that during the year 1940, Joseph B. Smith delivered to Matilda F. Fitch the sum of $1,000 to be invested in government bonds and held by her in trust for the use of Emilyn Smith in obtaining her education; that Matilda Fitch then and there agreed that she would place such sum in United States bonds.

The court further found that Matilda Fitch died in Seattle on October 28, 1944, and that Henry M. Fitch was qualified as executor of her will; that thereafter plaintiff demanded of such executor the delivery of the bonds to plaintiff as guardian of Emilyn Smith; that thereafter defendant delivered to plaintiff one of the United States bonds; that the only bond which was a part of the trust estate and which was turned over to plaintiff by the executor was of the value of $806.25, and there is still due and payable to plaintiff for the use and benefit of the minor out of the trust fund the sum of $193.75.

The court further found that Matilda Fitch had in her lifetime used a portion of the bonds for the benefit of her estate; that plaintiff had demanded repayment of the balance of the trust fund from defendant out of the assets of the estate, and the assets of the estate are in ample amount to repay the amount of the trust fund to plaintiff; that defendant has refused to repay such sum, or any part thereof.

Judgment was rendered against defendant in the sum of $193.75, with interest from October 28, 1944. Defendant executor has appealed from the judgment entered in the Emilyn Smith case, and we shall first discuss the questions therein raised and the evidence applicable thereto, Before discussing the William Smith case.

The following are the assignments of error made by appellant in the case now under consideration: The court erred (1) in holding that no filing of a claim was necessary; (2) in not dismissing the complaint on appellant's motion; (3) in permitting the amendment to be made; (4) in holding that there was a trust fund; and (5) in signing findings of fact Nos. 4, 5 and 6, for the reason that they are not supported by the evidence.

Referring to assignments of error Nos. 1 and 4, we are of the opinion there was sufficient evidence to show the creation of a trust in favor of Emilyn Smith. Having so concluded, we are of the further opinion it was not necessary to file a claim against the estate of Matilda Fitch.

The following testimony goes to the question of whether or not a trust was created. Joseph B. Smith testified that he was the former husband of Matilda Fitch, who passed away on October 28, 1944; that he and Matilda Fitch were divorced in 1932; that the minors here involved are the children of Joseph B. Smith and Matilda Fitch formerly Matilda Smith.

Mr Smith then described the transaction out of which Mrs. Fitch obtained the money which she was to hold in trust for these two...