State ex rel. Lauridsen v. Superior Court for King County

• Decision Date: 18 October 1934
• Docket Number: 24932.
• Citation: 179 Wash. 198,37 P.2d 209
• Parties: STATE ex rel. LAURIDSEN et al. v. SUPERIOR COURT FOR KING COUNTY et al.
• Court: Washington Supreme Court

37 P.2d 209

179 Wash. 198

STATE ex rel. LAURIDSEN et al. v. SUPERIOR COURT FOR KING COUNTY et al.

No. 24932.

Supreme Court of Washington, En Banc.

October 18, 1934

Proceeding by the State, on the relation of Anton M. Lauridsen and others, against the Superior Court for King County and another, to review an order denying the relators' petition for appointment as executors of the will of Marie Pederson.

Order reversed, with directions.

Hyland Elvidge & Alvord, of Seattle, for respondents.

STEINERT, Justice.

The relators filed a petition in the superior court of King county, seeking (1) the revocation of letters of administration formerly granted by the court to certain individuals, in the estate of Marie Pederson, deceased, and (2) the appointment of themselves as executors under the last will of Marie Pederson. The court denied their petition. The relators thereupon filed in this court an application for a writ to review such order which application was granted, and the matter is now Before us upon the return to the writ.

On March 6, 1931, Marie Pederson executed her last will and testament, in which she nominated and appointed Hans Pederson, her husband, as executor, to serve without bond. The will further provided that, in the event that Mr Pederson should die or be unable to complete his trust, then the relators herein should act as her executors under the will, upon giving bond in the sum of $5,000 each; further that, if any of the relators should die or fail to qualify then certain alternates, named in the will, should act in their places. The will is, by its terms, a nonintervention will.

Mrs Pederson died on March 6, 1932, one year after executing her will. On March 10, 1932, her will was admitted to probate upon the petition of Hans Pederson, her husband, who thereupon duly qualified as executor. Inventory and appraisement was filed showing the appraised value of the wife's one-half interest in the community estate to be $389,514.70, and the appraised value of her separate estate to be $10,500, or a total of $400,014.70. The total community estate was therefore of the appraised value of $779,029.40.

The community debts amounted to approximately $635,000, a very substantial part of which was in the form of mortgage indebtedness. The bulk of the estate consists of real estate, a large part of which is improved with apartment houses and other buildings, heavily mortgaged and burdened with accruing delinquent taxes. After the filing of the inventory and appraisement, a decree of solvency was entered May 21, 1932.

In December, 1931, prior to Mrs. Pederson's death, Mr. Pederson had suffered a paralytic stroke, and one side of his body was badly affected. The death of his wife proved a great shock to him in his weakened condition, and, although he qualified as executor of her will, it soon became apparent that its burdens were too great for him. On June 23, 1932, Mr. Pederson, realizing that he did not have the strength to carry on the extensive contracting business in which he had been engaged for many years, and which was at that time in a rather complicated condition, desired to be relieved from his duties as executor of his wife's estate. The constant demands of creditors seem to have been a potent factor in his decision to resign. In his written resignation he requested the appointment of Mr. George L. Haley as administrator with the will annexed. Mr. Haley, a contractor, had been a friend and business associate of Mr. Pederson for many years, was well acquainted with Mr. Pederson's affairs, and had Mr. Pederson's full confidence. A petition was accordingly filed requesting the appointment of Mr. Haley as such administrator. Notice of the hearing was given by the posting of three notices as required by the statute (Rem. Rev. Stat. § 1433). A number of creditors of the estate, and of Mr. Pederson, attended the hearing and requested that Mr. Ivan L. Hyland, who had been Mr. Pederson's attorney for many years, and who was intimately acquainted with his affairs, be appointed as coadministrator. The court accepted this suggestion and appointed both Mr. Haley and Mr. Hyland as administrators of the estate with the will annexed.

It appears that, when the appointment of Mr. Haley and Mr. Hyland was made, the court was not advised of the fact that the will nominated and appointed relators herein as executors to act in the event that Mr. Pederson should die or should for any reason be unable to complete his trust. In fact, the record is quite convincing that no one who had been connected with the administration of the estate up to that time had ever considered, or had had their attention particularly called to, that provision of the will. This oversight is accounted for by the fact that Mr. Pederson was expected to, and actually did, qualify and, for a time, did function as executor, and by the further fact that the serious condition of the affairs of the estate demanded immediate and continuing attention. The will had been drawn by an attorney who was in no way connected with Mr. Hyland. When Mr. Pederson decided to resign, the uppermost thought in the mind of every one then connected with the estate was to proceed with its administration in a way that would best conserve it and protect the interests of all concerned therein. However, it must be said, and emphasized here as a matter of fact, that, at the time that the administrators were appointed, none of these relators, with the possible exception of Clarence Madsen, knew that they had been named in the will as executors; further, that they did not learn of that fact until a few days Before Mr. Pederson's death in September, 1933.

In the order appointing Mr. Haley and Mr. Hyland as administrators, the court directed that 'this estate be administered by the administrators with the intervention of the court, and the order of solvency heretofore entered be and is hereby vacated.' However, no finding or order has ever been made to the effect that the estate is insolvent.

The record shows, by voluminous reports, that the administrators have spent a great deal of time and effort in administering the estate and endeavoring to wind up a considerably involved state of affairs.

During Mr. Pederson's last illness and a few days Before his death on September 6, 1933, the relators, or at least two of them, learned, for the first time, that they had been named by Mrs. Pederson as executors of her will in the event that Mr. Pederson was unable to complete his trust. Within a short time after his death they filed their petition hereinabove referred to.

The first and fundamental question to be decided is whether the right of a testator to name and appoint an executor to administer his or her estate may be superseded by the court by appointing an administrator of the estate, and, if so, under what circumstances the court may so act.

Rem. Rev. Stat. § 1415, provides: 'All courts and others concerned in the execution of last wills shall have due regard to the direction of the will, and the true intent and meaning of the testator, in all matters brought Before them.'

Rem. Rev. Stat. § 1417, provides: 'After probate of any will, letters testamentary shall be granted to the persons therein appointed executors. If a part of the persons thus appointed refuse to act, or be disqualified, the letters shall be granted to the other persons appointed therein. If all such persons refuse to act, letters of administration with the will annexed shall be granted to the person to whom administration would have been granted if there had been no will.'

Rem. Rev. Stat. § 1457, provides that corporations (with certain exceptions), nonresidents of this state, minors, persons of unsound mind or those who have been convicted of certain crimes, shall not be qualified as executors or administrators.

These statutes are expressive of, and in harmony with, the universal rule that a testator may name the person who shall be the executor of his or her will, and, when so named, letters testamentary shall be issued to such person unless he be ineligible.

'Letters testamentary must ordinarily be issued in accordance with the will of the testator, unless the person named as executor is ineligible. When asked to appoint the person whom a testator has nominated as executor, the court cannot refuse to make the appointment on the ground that reasons are alleged which warrant the belief that the executor will subsequently incur disabilities specified, or will so conduct himself that grounds for revocation of the letters will arise in the future. It is not uncommon for a testator to make his will for the sole purpose of nominating an executor to administer his estate. Mere technicalities will not be permitted to stand in the way of the appointment. For example the fact that a person nominated by a will to execute it is designated as 'executor and administrator' does not render the provision void. Great liberality is usually exercised in committing the execution of wills to those indicated in any manner by the will as the testator's choice, so as not to disappoint his wishes, regardless of technicalities. The court itself can make no original appointment of an executor, its power being limited to recognizing and approving or disapproving an appointment made by the testator. So far as possible, the courts carry out the intention of the testator by seeing that the trust is committed to the one designated by the testator. To do this the nominated executor almost invariably is given an opportunity to accept or decline the executorship.' 11 R. C. L. p. 31, § 17.

See also, to the same effect, Farmers' Loan & Trust Co. v. Security Trust Co., 79 Ind.App. 537, 138 N.E. 97; Adams v. Readnour, 134 Ky. 230, ...