State v. Superior Court for King County

• Decision Date: 22 September 1930
• Docket Number: 22601.
• Citation: 291 P. 481,158 Wash. 546
• Parties: STATE ex rel. COWLEY et al. v. SUPERIOR COURT FOR KING COUNTY et al.
• Court: Washington Supreme Court

291 P. 481

158 Wash. 546

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

No. 22601.

Supreme Court of Washington

September 22, 1930

Department 2.

Certiorari by the State, on the relation of William Marion Cowley and others, to review an order of the Superior Court for King County, appointing F. J. McCurdy as administrator with the will annexed of the estate of William-Anna Loring, deceased.

Order affirmed.

Murphy & Kumm and Orville C. Hatch, Jr., all of Seattle, for petitioners.

Poe Falknor, Falknor & Emory, of Seattle, for respondents.

FULLERTON J.

William-Anna Loring, a widow, died in France from injuries received in an automobile accident on April 30, 1930. At the time of her death she was a resident of the city of Seattle, in this state, and left a relatively large estate therein, consisting principally of shares of stock in a corporation, which owns operates, and manages business properties in the city named.

The decedent left surviving her as her direct heirs, that is to say, heirs who would inherit her estate under the laws of descent of this state, a daughter and two granddaughters; the granddaughters being children of a deceased son. As collateral relatives, that is to say, relatives who have no direct inheritable interest in her estate, she left three nephews also residents of the city of Seattle.

The decedent left a will in which, after making a specific bequest and devise to her daughter, she bequeathed and devised the remainder of her property in trust for the benefit of her daughter and her granddaughters. In her will she named her sister, Eleanor F. Holland, as the executrix of her estate, but made no provision for an alternate executor or executrix in the case the executrix named was not able to act as such.

The executrix named in the will died from injuries received in the accident which caused the death of her testatrix, and, following her death, the daughter of the decedent, and a granddaughter who had then reached the age of majority, petitioned the superior court of King county to admit the will to probate and to appoint one F. J. McCurdy, of Seattle, as administrator of the estate with the will annexed. Pending the hearing on the petition, the three nephews filed a petition in the same proceedings, asking the appointment of one of their number, William Marion Cowley, as such administrator. The petitions were consolidated for the purposes of the hearing, and evidence was taken on the respective applications, resulting in the appointment of F. J. McCurdy as such administrator.

The proceeding before us is on a writ of certiorari issued out of this court to review the order of the superior court. On the hearing it appeared that Mrs. Loring, at the time of her death, owned five-sixths of the capital stock in the corporation above mentioned; that the corporation had just completed an apartment hotel at a cost of upward of $1,000,000 and that its capital stock had a book value of more than $1,100,000; that McCurdy is, and for more than five years last past has been, the vice president and general manager of the corporation, and the person who had had the sole management and control of the business of the corporation during that period. No question is made as to his qualifications to act as administrator. On the other hand, it is conceded by counsel for the nephews that the nephews have no beneficial interest in the estate of Mrs. Loring, as heirs or otherwise. The record furthermore shows that neither of them has ever had any connection with or interest in the corporation whose capital stock forms the principal asset of the estate, and that they are strangers to its business and its business methods. They rest their right to have one of their number appointed as administrator wholly upon the statutes.

The first of the sections of the statutes thought to be controlling is found at section 1417, of Remington's Compiled Statutes, and reads as follows: '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.'

The second is found at section 1431 of the Supplement of 1927 to the statutes cited, and reads:

'Administration of the estate of the person dying intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled in the following order:

'1. The surviving husband or wife, or such person as he or she may request to have appointed.

'2. The next of kin in the following order: 1, child or children; 2, father or mother; 3, brothers or sisters; 4, grandchildren; 5, nephews or nieces.

'3. One or more of the principal creditors.

'4. If the persons so entitled shall fail for more than forty days after the death of the intestate to present a petition for letters of administration, or if it appear to the satisfaction of the court that there are no relatives or next of kin, as above specified eligible to appointment, or they waive their right, and there are no principal creditor or creditors, or such creditor or creditors waive their right, then the court may appoint any suitable person to administer such estate.'

The facts recited, it will be observed, present an instance, where the executrix named in the will cannot act, vesting the right to the appointment in the person to whom administration would have been granted had there been no will. The second of the sections quoted is therefore applicable to the situation. There being no surviving husband, the right vested in the next of kin in the following order (speaking, of course, with reference to the facts shown), first in the daughter, second in the granddaughter, and third in the nephews. It will be observed that the statute vests the right to request the appointment of a third person as administrator only in the surviving husband or wife, not in the persons denominated in the statute as next of kin, so that a request made by one of those first in right for the appointment of some one in his stead does not affect the right of those coming after, even though the person having the superior right may be qualified to act. Stated in a more direct way, the person qualified must either accept the appointment himself or waive the right absolutely.

The trial court rested its conclusion on the principle that the statute was not mandatory in the sense that it must be literally followed. It reasoned that, since the nephews in this instance were not beneficiaries of the estate either under the statutes of descent or by the terms of the will, they were as much strangers to the estate as were any other persons having no interest therein, and because thereof they did not fall within the meaning of the term 'next of kin,' as used in the statute; holding further that, since neither of the nephews had an absolute right to be appointed administrator, it could exercise its discretion in making an appointment.

Whether the term 'next of kin,' as used in the statute, includes persons although relatives by blood, who have no interest in the estate, either under the statutes of descent or by the terms of the will of the decedent, is a question of first impression in this court. It has, however, received consideration in the courts of other jurisdictions. These courts hold with practical unanimity that such a relative is not the 'next of kin,' within the meaning of the statute. In re Estate of Weaver, 140 Iowa, 615, 119 N.W. 69, 70, 22 L. R. A. (N. S.) 1161, 17 Ann. Cas. 947, it appeared that a John Weaver died intestate leaving as his only heir at law a nonresident son. On petition of the son a stranger to the blood was appointed administrator. Later on, a brother of the deceased, who would not inherit under the statutes of descent, petitioned the court to revoke the appointment made, and appoint the petitioner such administrator. The trial court granted the petition, and on appeal its order was reversed, the court saying:

'Code § 3297, provides that, where an executor is not appointed by will, administration shall be granted: (1) To the husband or wife of the deceased; (2) to his next of kin; (3) to his creditors; (4) to any other person the court may select. The argument in support of the action of the court is, in substance, that the brother of the deceased was a 'next of kin'; that although the son was a nearer kin, and his right to administration had preference over the right of the brother, yet upon his failure to exercise that right within the time provided by the statute, he lost it, and that the brother was then entitled to take his turn. This argument involves the question of the right of a party preferred under the statute to nominate a stranger in his stead, and considerable of the argument of counsel is devoted to that question. We shall have no occasion to go into that question in the determination of this case. The fallacy which has entered into the argument supporting this proceeding is the assumption that a brother of a decedent is necessarily a 'next of kin.' In the primary meaning of this term the next of kin of a decedent are the persons nearest in degree of blood surviving him. 16 Am. & ...