State v. Kauffman

• Decision Date: 25 June 1915
• Docket Number: 12865.
• Citation: 149 P. 656,86 Wash. 172
• Parties: STATE ex rel. NEAL v. KAUFFMAN, Superior Court Judge.
• Court: Washington Supreme Court

149 P. 656

86 Wash. 172

STATE ex rel. NEAL v. KAUFFMAN, Superior Court Judge.

No. 12865.

Supreme Court of Washington

June 25, 1915

Department 2. Application for writ of prohibition by the State, on relation of Fred T. Neal, administrator of the estate of James Watson, deceased, against Ralph Kauffman, Judge of the Superior Court of the State of Washington in and for the county of Kittitas. Demurrer to writ quashed, and permanent writ denied.

F. K P. Baske, of Davenport, for plaintiff.

Hovey &amp Hale, of Ellensburg, for respondent.

ELLIS J.

This is an application for a writ of prohibition to restrain the respondent, as judge of the superior court of Kittitas county, from assuming or exercising jurisdiction over the estate of James Watson, deceased, on the ground that the deceased was not a resident of that county at the time of his death. The application recites that the respondent has already assumed jurisdiction of the estate, and is attempting to probate the same; that James Watson was a resident of Okanogan county at the time of his death, and owned property both in that county and in Kittitas county that he died in Okanogan county about October 1, 1913, and that the relator was on petition and notice regularly appointed as administrator of the estate by the superior court of Okanogan county on May 6, 1915. The proceedings in Okanogan county are not set out, nor does it appear upon whose petition the relator was appointed. An alternative writ was issued by this court, and the matter is now here upon the application and affidavits in support thereof and the respondent's answer and return thereto. The answer and return alleges that James Watson died in Okanogan county Wash., on October 16, 1913, leaving a nonintervention will of all his property, the larger part of which was located in Kittitas county; that his brother Benjamin F. Watson, then a resident of San Francisco, Cal., and one James Ramsay of Ellensburg, Kittitas county, Wash., were named in the will as executors to serve without bonds; that at the time of the testator's death the brother was not prepared to remove to this state, and James Ramsay was temporarily absent from this state; that on the petition of Benjamin F. Watson, one D. W. S. Ramsay of Ellensburg, Kittitas county, Wash., after notice as required by law, and, after full proof of the execution of the will by the testimony of the subscribing witnesses thereto and its admission to probate, was appointed as administrator of the estate with the will annexed on November 11, 1913, by the superior court of Kittitas county, and on November 13, 1913, qualified as such by giving the bond in the sum of $40,000 as fixed by that court; that in the order the court found and adjudged that James Watson was, at the time of his death, a resident of Kittitas county, Wash., and left an estate therein; that notice to creditors was immediately published, and the year for presenting claims against the estate expired on November 20, 1914; that the administrator caused the estate to be appraised on December 15, 1913; that in May, 1914, both of the executors named in the will took up their residence in Kittitas county, Wash., and the administrator with the will annexed made a full report of his actions touching the estate, and was discharged and all of the property belonging to the estate was turned over to the executors named in the will; that on November 30, 1914, the executors paid the inheritance tax due from the estate to the state of Washington; and that there is now no further occasion for probate proceedings in connection with the estate. All of these allegations touching the probate proceedings in the superior court of Kittitas county are substantiated by a certified transcript of the proceedings from the probate records of that county which is attached to and made a part of the respondent's return and answer. It is further alleged that an action has been commenced in the superior court of Kittitas county by an Indian woman known as Margaret Watson, with whom the testator resided from time to time before his death, and who was provided for in his will, seeking to establish that she was the wife of the decedent and to have the property belonging to the estate adjudged to be community property of herself and the decedent; that the action was commenced on December 8, 1914, more than a year after the will was probated and is now set for trial.

The statute governing the probate of estates (Rem. & Bal. Code, § 1284) provides:

'Wills shall be proved and letters testamentary or of administration shall be granted--1. In the county of which deceased was a resident or had his place of abode at the time of his death. * * *'

The relator contends that this statute makes residence in the county jurisdictional, and is mandatory, and that upon the showing made by his petition and affidavits in support thereof that the decedent at the time of his death resided in Okanogan county, and not in Kittitas county, a permanent writ of prohibition should issue restraining the superior court of the latter county from further proceedings in the premises. For the purpose of this case it may be conceded that the superior court of the county where the decedent resided at the time of his death has, under the statute, exclusive jurisdiction to administer the estate and to issue general letters thereon. This court so held on an appeal in the case of Stern v. Sill, 39 Wash. 557, 81 P. 1007, without referring to the earlier decision in Higgins v. Nethery, 30 Wash. 239, 70 P. 489, in which it was held that the residence of the decedent is not a jurisdictional fact under this same statute. But conceding the correct rule to be as stated in the later case of Stern v. Sill, it does not follow that prohibition is the proper remedy in this case. Where the right of a court to take jurisdiction of a given case is dependent on a given fact, the determination of that fact, like any other question of fact, is referred in the first instance to the trial court. It is a fact which that court must determine in limine in every case. That court of necessity has original jurisdiction to determine that fact. Its decision on that question of fact is reviewable in this court only by appeal or certiorari. In the absence of an appeal or an application for a writ of review its decision is conclusive. State ex rel. Baldwin v. Superior Court, 11 Wash. 111, 39 P. 818; Davison v. Davison, 100 Mo.App. 263, 73 S.W. 373; McDonnell v. Farrow, 132 Ala. 227, 31 So. 475.

'To grant letters on the estate of a deceased person the probate court must find as a fact, and thus judicially determine, that the deceased had his domicile in the county or territorial district over which the jurisdiction of the court extends (or, if a nonresident of the state, that he left property there), for otherwise the court would have no jurisdiction to grant letters, or take probate of a will. It was formerly held in many states that, notwithstanding this finding and adjudication by the court, proof might be made in a collateral proceeding showing that such finding and adjudication was erroneous, and that as a matter of fact the decedent was, at the time of his death, domiciled in a different county, and that in such case the grant of letters was void ab initio for the want of jurisdiction. But the more reasonable doctrine is gaining ground, and is now held in nearly all the states, that letters so granted, while they are voidable when properly assailed, are valid until revoked in a direct proceeding.' Woerner, American Law of Administration (2d Ed.) § 204, p. 470.

This last-stated rule is especially applicable in this state where both by Constitution and by statute the superior court, a court of general jurisdiction and as part of that jurisdiction, has cognizance of all matters of probate with power to exercise all of the inherent functions of a court of general jurisdiction in disposing of such matters. Const. art. 4, § 6; Rem. & Bal. Code, § 1278; State ex rel. Keasal v. Superior Court, 76 Wash. 291, 136 P. 147; In re Williamson, 75 Wash. 353, 134 P. 1066; Sloan v. West, 63 Wash. 623, 116 P. 272; In re Sall, 59 Wash. 539, 110 P. 32, 626, 140 Am. St. Rep. 885; Reformed Presbyterian Church v. McMillan, 31 Wash. 643, 72 P. 502; Filley v. Murphy, 30 Wash. 1, 70 P. 107.

The final decision of the superior court in matters of probate made upon statutory notice is conclusive when unappealed from, and cannot be collaterally attacked. In re Ostlund v. Sagstad, 57 Wash. 359, 106 P. 1116, 135 Am. St. Rep 990; Alaska Banking & Safe Deposit Co. v. Noyes...