Wallace v. Grant

• Decision Date: 03 January 1902
• Citation: 67 P. 578,27 Wash. 130
• Parties: WALLACE v. GRANT et al.
• Court: Washington Supreme Court

67 P. 578

27 Wash. 130

WALLACE v. GRANT et al.

Supreme Court of Washington

January 3, 1902

Appeal from superior court, Lincoln County; C. H. Neal, Judge.

Foreclosure proceeding by H. W. Wallace against W. E. Grant, as administrator of John H. Bellinger, deceased, and others. Judgment for plaintiff, and certain defendants appeal. Reversed.

Martin & Grant, for appellants.

C. S Voorhees, Reese H. Voorhees, and Joseph Sessions, for respondent.

DUNBAR J.

John H Bellinger died in Lincoln county, Wash., in December, 1895. W. N. Bellinger was appointed by the superior court of said county as administrator of said estate, and entered into possession of the estate as such administrator. The estate consisted of real and personal property. On the 21st of May, 1896, the administrator filed a petition to mortgage a part of the real estate. The petition was granted and the real estate was mortgaged. This action is for the foreclosure of said mortgage. The defendant demurred to the complaint, which demurrer was overruled, and the cause was tried, and judgment of foreclosure entered in favor of the plaintiff against the estate.

The petition to sell was not verified, and was not approved by the judge who ordered a sale of the real estate mortgaged and it was defective in some other particulars. In the foreclosure proceedings it was asked that the mortgage be reformed, and the court ordered and adjudged that it should be reformed, and after finding that by mistake the mortgage was not presented to the court making the order for its approval, and that it had not been approved, or indorsed 'Approved,' it reformed it by decreeing that it was entitled to approval by the court. Whether the court had power to reform the mortgage in this respect and in this manner it is not now necessary for us to determine, with the view we take of more important objections which are raised to the proceeding.

The petition for the sale of real estate was as follows: 'The petition of W. N. Bellinger would respectfully show as follows: That your petitioner is the duly-appointed and acting administrator of the estate of said John H. Bellinger deceased; that, acting under an order heretofore made, entered, and issued, your petitioner has sold all the personal property of said estate that, in his judgment, is advisable to sell at the present time, and that the moneys arising from said sale have been expended by your petitioner in paying the funeral expenses of said deceased, and in paying interest on mortgages of the real property of said estate, and taxes on said real estate, and other and numerous expenses connected with your petitioner's administration of said estate; that, in consequence of a lack of funds belonging to said estate, your petitioner has had to pay out of his own personal funds a considerable sum of money, in paying certain necessary expenses connected with his administration of said estate; and that there are unpaid certain expenses of administration. Your petitioner would respectfully represent to the court that a portion of the estate left by said John H. Bellinger is situated in the state of New York, and that the only person living who is entitled, under the laws of Washington, to inherit the estate of said John H. Bellinger, or any portion thereof, is the mother of the said deceased, who resides in the state of New York, and lives upon the property left by the deceased in said state, and occupies it as her home; and there is certain indebtedness against the estate in New York, the exact amount of which is unknown to your petitioner, and that it is the desire and the wish of the mother of the deceased that your petitioner should go to the state of New York and look after the property there, and settle up the indebtedness against the estate in New York; and for this purpose the mother of deceased is willing and desires, if it can be done, that your petitioner raise sufficient money by mortgaging the whole or a portion of the real property of said estate in the state of Washington; that, in the judgment of your petitioner, it would be to the best interest of the estate, and all the persons interested therein, to mortgage a portion of the real property of said estate for the purposes just above mentioned, and for the purpose of reimbursing your petitioner with moneys he has paid out on said estate out of his personal funds, and for the further purpose of settling up the unpaid expenses of administration. That your petitioner would further represent to the court that the indebtedness against said estate is small, and the granting of this petition would in no wise jeopardize the few claims held by creditors of said estate, as said estate is solvent, and will be able to pay in full all of its indebtedness; that, in your petitioner's judgment, the real estate most advisable to mortgage is described as follows, to wit: The northwest quarter of section 9, township 24 north, of range 39 E., W. M., and lots four (4), five (5), twelve (12), thirteen (13), and fourteen (14) in Sec. four, township twenty-four (24) north, of range thirty-nine (39) E., W. M.; all of...