Wilbur v. Wilbur

• Decision Date: 05 October 1897
• Citation: 50 P. 589,17 Wash. 683
• Parties: WILBUR v. WILBUR ET AL.
• Court: Washington Supreme Court

50 P. 589

17 Wash. 683

WILBUR v. WILBUR ET AL.

Supreme Court of Washington

October 5, 1897

Appeal from superior court, Skagit county; H. E. Hadley, Judge.

Exceptions by John Davis Wilbur and Charles Wilbur to the final account of Sarah J. Wilbur, as administratrix of the estate of John T. Wilbur, deceased. From an order refusing to allow certain charges, the administratrix appeals. Reversed.

E. C. Million, for appellant.

Sinclair & Smith and Lindsay, King & Turner, for respondents.

SCOTT C.J.

This is an appeal from an order fixing the compensation of the administratrix. A motion is made to dismiss, for the reasons that the same is not an appealable order, and that the appellant, as administratrix, has no right to appeal therefrom. The first point was recently decided against the respondent in Horton v. Barto, 50 P. 587, and, in answer to the second, it appears that the notice of appeal and bond were given by the appellant in an individual, and not in a representative, capacity, so that the contentions of the respondent were complied with, even if the point would have been good otherwise. The fact that the word "administratrix" appears after the appellant's name does not militate against this, for the appeal was not taken in that capacity, and the word was nothing more than descriptive of the person, if it was entitled to any significance.

We find it unnecessary to consider the further question that the costs should be taxed to the administratrix personally, as the judgment must be reversed upon the merits.

The next point has also been decided in the case alluded to, since this matter was tried in the lower court. The real estate was appraised at $11,345, but the court allowed compensation thereon only in the sum of $150, without any proof of an overvaluation. In the absence of any showing to the contrary, it must be presumed that the appraised value represented the actual value of the real estate, and, upon the authority of the case referred to, the appellant was entitled to the statutory commission thereon.

It is next contended that the court erred in refusing to allow the administratrix an item of $250, charged for attorney's fees contracted by her in procuring letters of administration; but this was not a proper charge against the estate. It was optional with the appellant whether she employed an attorney or not. It was a debt contracted in advance of any authority on the part of appell...