57 Wash. 446 | Wash. | 1910
Lead Opinion
On December 2, 1886, James Duvall purchased 160 acres of land, lying in King county, Washington. At that time Duvall was a married man, living with his wife, and the real property so purchased became the community property of himself and wife. To Duvall and wife were born four children: George W., born December 3, 1878; James C.,
In the month of November, 1903, nearly thirteen years after the death of his wife, James Duvall procured himself to be appointed administrator of her estate, and in March, 1904, began this action against the respondent to recover the land described, averring that his deed thereto to Henry Hewitt, Jr., was void and of no effect. In the title to his complaint he purports to sue as administrator of his wife’s estate and as guardian ad litem of his children, but at the trial he offered no evidence tending to show that he had been appointed either their permanent guardian or guardian ad litem, and he must recover in this action, if he recovers at all, in his capacity as administrator solely. Two of the children, at the time of the commencement of the action, were minors, but they had reached the age of majority at the time of the trial. None of them intervened or offered to intervene in the action. The court held that the respondent was not entitled to recover, and dismissed the action. From the judgment of dismissal the administrator has appealed.
The appellant, both in his complaint and in his brief, seems to contend that his deed executed after his wife’s death passed no title whatever in this land to the grantee named therein, but manifestly this is not maintainable. The property, being
The question for consideration is then, does there exist a necessity for the administration of this estate. The statute,
Under these statutes it is plain that there is no necessity for an administration of this property. There are no debts to which it can be subjected, and the title is fully vested in those who are rightfully entitled thereto. If it should be delivered over to the administrator he could do nothing more than deliver it back to those rightfully entitled to it burdened with the costs of administration caused solely by his interference. If there is any controversy by the heirs of the appellant’s deceased wife and the respondent over the title or right of possession of the property, that controversy can better be settled by an action directly between the parties than it can in a proceeding brought to administer upon an estate. Where a contest over the ownership of property arises when an attempt is made to distribute property administered upon, which has been properly subjected to an administration, it is proper, of course, to determine the controversy in the administration proceedings, but such a controversy cannot, of itself, give rise to the necessity of an administration. These principles we think are sustained by the cases of Griffin v. Warburton, 23 Wash. 231, 62 Pac. 765; Anrud v. Scandinavian-American Bank, 27 Wash. 16, 67 Pac. 364, and Murphy v. Murphy, 42 Wash. 142, 84 Pac. 646.
The respondent, however, relies on the case of Gibson v.
“In the Murphy case we said: ‘We are of opinion that, under the facts shown, no real necessity existed for any administration in this state, eleven years having elapsed since the testator’s decease, and his estate in Iowa having been fully settled there by a court of competent jurisdiction. Had any good and sufficient reason existed at any time for administration in Washington, the interested party desiring the same should have applied for the appointment of an administrator within at least six years after the death of said J. H. Murphy.’
“It will thus be seen that our holding in the Murphy case was based not only upon the provisions of § 4640, but also of § 4642. Here the appellant Frank Slater failed to procure letters of administration on the estate of his deceased wife, but instead seized upon and claimed title to all of the real estate, adversely to her heirs at law, issue by former marriages; and respondent, a little more than three years after her death, within the six years mentioned in Bal. Code, § 4642, was appointed administrator, apparently for the express purpose of protecting the interests of said heirs, a number of whom are minors. It is true appellant contends there were no outstanding debts, and has alleged he paid all that ever existed, but that makes no difference, as the heirs at law are here entitled to have the administrator recover and distribute the real estate free from the possibility of any such liens.”
We conclude, therefore, that there was no necessity for administering upon the estate of the appellants’ intestate, and the judgment will stand affirmed.
Chadwick and Gose, JJ., concur.
Dissenting Opinion
(dissenting) — This is a collateral attack on letters of administration issued by a court of competent jurisdiction, and the conclusion of the majority can only be sustained upon the ground that letters of administration granted more than six years after the death of the intestate are null and void. In that conclusion I cannot concur.
Morris, J., took no part.
Rehearing
On Rehearing.
[En Banc. June 25, 1910.]
Per Curiam.
A hearing en banc was granted in this cause and the same has been argued by the appellant before the full court. While a majority of the court have voted to adhere to the department decision, it has deemed it best to notice again the contention of the appellant to the effect that cthe department erred in holding that the appellant sued originally as administrator, solely, and not as guardian ad litem of his then minor children. Since the argument, we have again consulted the record on this point and are unable to find that any proper steps were taken to make these children parties while they remained minors, or that they have inter-pleaded or otherwise appeared in the action since they reached the age of majority. We emphasize this point so that the judgment appealed from may not be treated as a bar to any action these children in their individual capacities may deem fit to bring against the respondent.
The judgment will stand affirmed.