State v. Superior Court of King County

• Decision Date: 24 June 1902
• Citation: 28 Wash. 677,69 P. 375
• Court: Washington Supreme Court
• Parties: STATE ex rel. RICHARDSON v. SUPERIOR COURT OF KING COUNTY.

69 P. 375

28 Wash. 677

STATE ex rel. RICHARDSON v. SUPERIOR COURT OF KING COUNTY.

Supreme Court of Washington

June 24, 1902

Certiorari by the state, on relation of W. F. Richardson, against the superior court of King county, to review an order appointing a general administrator notwithstanding an appeal by relator from an order annulling decedent's will, under which he was executor.

Edward H. James, for relator.

HADLEY J.

This is an original application in this court for a writ of certiorari directed to the superior court of King county and the Honorable Boyd J. Tallman, one of the judges thereof. The application shows that on the 14th day of April, 1901, one Charlotte B. Richardson died testate, leaving an estate of real and personal property in said King county; that on the 15th day of April, 1901, there was presented to said superior court the last will and testament of the deceased, as executed by her on the 24th day of June, 1897, and on said 15th day of April said superior court made an order admitting said will to probate, and appointing relator executor of the estate, in accordance with the terms of said will; that thereafter relator gave a bond, which was approved by the court, and thereupon letters testamentary were issued to relator; that thereafter one Emeline Moore filed a petition in said court, alleging that said deceased was not of sound mind at the time of executing the will aforesaid and praying to have the same set aside; that a contest was thereupon had concerning the competency of the deceased to make said will, and upon a trial of the issues raised by said contest the court determined that said deceased was not of sound and disposing mind at the time of executing said will and that the same was null and void, to which effect judgment was entered February 19, 1902; that after the entry of said judgment, but before the time allowed by law for appealing therefrom had expired, said Emeline Moore presented to the Honorable Boyd J. Tallman, sitting as judge, a paper writing purporting to be a will of said deceased, made by her on the 31st day of October, 1892, and upon the petition of said Emeline Moore the said paper writing was on the 3d day of March, 1902, by order of the said judge, admitted to probate as the last will and testament of the deceased; that, on the 8th day of March following, one Frank R. Atkins filed a petition praying that letters testamentary with the will annexed might issue to him, and that he might administer upon said estate under the terms of said alleged will last admitted to probate; that, after said proceedings were had relator gave notice that he appealed to this court from the aforesaid judgment annulling the will first admitted to probate, and on the same day filed an appeal bond in the sum of $200, and that said appeal is till pending and in full force; that thereafter, on the 8th day of April, 1902, the petition of said Frank R. Atkins came on to be heard before the said judge, and at said time relator appeared, and by petition prayed the court to set aside or suspend its order of March 3d admitting to probate the alleged will dated October, 31, 1892, and to suspend all further proceedings, other than appointing a special administrator, until the appeal to this court could be heard or determined; that relator's said petition was denied by said judge, and thereupon a decree was entered appointing said Atkins general administrator, with the will annexed, of the estate of said deceased, and letters of administration, with the said alleged will annexed, were issued to said Atkins, and he is now administering upon said estate; that unless a writ of certiorari shall issue herein, the estate of said deceased will be distributed long before said appeal can be heard and determined.

It is thus sought by relator to review the action of the superior court in admitting to probate the will of 1892, and in appointing said Atkins administrator with said will annexed. Relator urges that, by his appeal from the judgment annulling the will under which he was appointed executor, all further proceedings were stayed. Respondent contends that further proceedings were not stayed in the absence of a supersedeas bond. It is doubtful if the supersedeas bond would serve any purpose in such a case. Relator having been appointed executor of a will which had been admitted to probate, his right to defend the validity thereof, even to the extent of an appeal, cannot be seriously disputed. Provision is made by statute that the estate itself shall pay the costs and expenses resulting from a will contest. Section 6116, 2 Ballinger's Ann. Codes & St., is as follows: 'The fees and expenses shall be paid by the losing party. If the probate be revoked or the will annulled, the party who shall have resisted such revocation shall...