*1 934 tests of these two test;
under the
so that discussions
first
rel.
State ex
interrelated.)
e.g.,
See
usually
are
opinions
436,
The judgment
All Concur. February 25, 1971.] En Banc. 39916.
[No. Harby Hesthagen al., et Appellants, v. Gunda Gunvor Blomberg al., et al., et Theodore C. Appellants,
Respondents.*
*Reported
Clifford Bryan Harrod, & Harris & Gerald Hoof, Shucklin Harby. appellants Shucklin, for by Philip respondents & Fraser, Best, M. Wallace Blomberg et al. dis- attack the final J. This is collateral Finley, Harby, Maja of one
tribution assets the estate complaining Plaintiffs, heirs, the nieces and deceased. are (1) nephew of the the distributees decedent. Defendants (2) distribution, decree of the administrator under the *3 surety. appeal the from estate and his The distributees judgment against plaintiffs. in Plaintiffs them favor a appeal ad- from a dismissal of their claim as the surety. pertinent The facts are these: ministrator and his elderly Harby, Harby, Maja and sisters, Three Gunda Harby Warming, together a widow, Bertha resided for Warming, Washington. years period Bremerton, in Mrs. quite ill in estate, amassed a substantial became who manage At be- and her business affairs. was unable Harby, Theodore brother, and their hest Gunda Blomberg, appointed contractor, a mechanical was C. Warming’s guardian, guardian with the of Mrs. attorney, managed Warming’s Mrs. affairs of his assistance leaving of her died, when she the substance until (her daughter residing Norway Maja in Gunda estate to her). Maja having request predeceased Gunda, At the Blomberg appointed Mr. administrator- with the will was the estate. and continued administration of While annexed Warming’s proceeds engaged, from estate of Mrs. so Blomberg through daughter to Mr. were transmitted Washington. Norwegian Seattle, in Before the Consul estate Maja distributed, 24, 1961,- and on November died by her Gunda, brother intestate. She was survived the children of California, Harold who resided in Harby brother, i.e., herein, deceased Gunvor Hesthagen, Harby Egon Haugen, Harby Bratlie, Tove Ruth Harby, residing Norway, Bunk, resid- in and Eva all Germany. Wangensteen, ing a sixth in Aase Christensen residing Norway, is not a brother, child of the deceased During Maja party to her lifetime maintained this suit. through correspondence. Like- contact with these relatives Maja’s wise, death, Harold, and after both before Gunda varying degrees, corresponded and communicated with them. Maja’s death, Harold,
At the time of informed Gunda both Egon Harby Norway passing, brother, of her following a funeral her brief service remains were cremated Egon placement resting and sent to for near her mother’s Egon, place. Maja’s pass- turn, notified his five sisters of ing. request meantime, In the at the of Gunda and with Blomberg acquiescence agreed Harold, Mr. to act as Maja’s estate, administrator of consisted of her un- Warming’s capacity, share of distributed Mrs. estate. In this Blomberg was aware that remains had been Norway. sent to prelude Blomberg’s appointment
As a to Mr. as adminis- preparation petition trator, therefor, and in his at- torney perfunctorily inquired regarding Maja’s of Gunda responded only heirs. she and Harold were the remaining inquiry, petition heirs. Without further (RCW list heirs letters administration 11.28 83.36.040) signed by prepared, .111, Gunda, and filed Superior Kitsap County, Washington, Court for list- *4 ing surviving and Harold as the Gunda sole heirs. Pursuant any appearance thereto, court, and without in Mr. Blom- berg appointed appointment administrator, notice of his was and Harold in accordance forwarded Gunda with RCW posted. 11.76.040, 11.28.237and and a bond Plaintiffs re- proceeding. no notice of the ceived Blomberg attorney
Thereafter, Mr. nor neither his made investigation any inquiry heirship, further as to and any in- nor volunteered additional neither Gunda despite respect. in This the fact formation this readily of information were evidence indicates sources plain- existence of available would have revealed the surviving Maja. of Mrs. as of Administration tiffs heirs Maja’s Warming’s concluded, and and estates was Blomberg’s petition distribution, final account and testimony superior together support thereof, in Warming’s Maja’s dis- court ordered share of estate Mrs. on Harold, alike, to Gunda and share share tributed August Again plaintiffs no 1962. received notice 6, accounting and of the estate. final distribution spent Norway In consider- 1963,Harold visited June residing plaintiffs evidence time those there. The able any dispute as to conversa- the nature and extent plaintiffs con- then carried on and Harold tions between Maja’s disposition. cerning In Harold’s estate and its at Hesthagen expense, plaintiff invitation and Gunvor Upon Harold and his California. Gun- visited with wife in Norway inquiries and in were vor’s return to October Norwegian Seattle, turn, who, Consul in directed to Blomberg’s learned communicated with Mr. relayed Maja’s proceedings in The consul then part this information sometime latter Negotiations early part 1965. December November culminated in the institution then commenced which early September 1966. suit alleged By complaint plaintiffs their Blomberg administrator, Harold, as well as Mr. as the probate court failed advise the of their existence Maja’s proceedings give them notice failed to thereby depriving opportunity have estate, them of They sought judgment against heirship determined. jointly severally. essence, the de- defendants, any wrongdoing affirma- denied intentional fendants tively pleaded the Trial statute limitations. followed be- jury. sitting fore the court without findings substantially fact court made trial (a) although plaintiffs were informed of follows: *5 they not and did learn notified death were not rights thereof, of their estate, her administration (b) Harold knew and 1965; until Gunda as heirs December plaintiffs fre- had communicated and existence (c) quently death; both them and after with before they being represented and Harold knew that Gunda probate revealed the sole heirs but neither court as plaintiffs administrator, his attor- the existence of regard, ney, neither acted court; however, nor to the in this (d) fraudulently and deceive; intent to nor with statutory rights to ad- Harold their act as both waived (e) Blomberg; neither Blom- ministrator in favor of Mr. berg actually nor his of the existence was aware beyond plaintiffs independent attempt, a and made no prefatory potential inquiry heirs; Gunda, to discover investigation (f) inquiry and have reasonable timely plaintiffs’ relationship their revealed existence and Maja; (g) property distributed to Gunda and possession Harold is in their either in the form still distrib- (cash) commingled uted funds. other foregoing findings, From the the trial conclusions court’s (a) plaintiffs of law were as follows: had not received no- pendency probate proceedings tice of or of the hearing upon report petition final for distribution required 11.76.040, RCW 11.28.237 and and SPR (formerly 98.04W) RPPP de- 98.04W should prived property process (b) law; of their due without Harby failing timely the conduct of Gunda and Harold plaintiffs’ though existence, innocent, disclose constituted warranting recovery against extrinsic fraud them; (c) right against to recover the negligence surety, failing his his based heirs, search for the was barred statute of limita- tions.
Judgment then entered was defendants Gunda appealing. from which now against the Plaintiffs’ claim defendant administrator and surety appealing dismissed, 'are court. action of the trial adminis- dismissing from the order
Plaintiffs’ appeal first. trator and his will be considered surety dismissing court erred in the trial contending (a) urge and his surety, plaintiffs the administrator re- notice failure to comply the administrator’s 98.04W and SPR 11.28.237 and 11.76.040 of RCW quirements *6 due a denial of process RPPP was (formerly 98.04W) defect in the pro- to a fatal jurisdictional law tantamount duty the administrator’s breach (b) bate proceeding; them and give existence to ascertain failing plaintiffs’ or extrinsic misfeasance notice constituted the required the circumstances fraud; prevailing, under (c) the statute by is not barred action of limitations. (a) contends that RCW the administrator
In response, to only and 11.76.040 and SPR 98.04W pertain 11.28.237 to his failure dis- administrator; (b) to the heirs known no more than ordi- was, best, existence at cover plaintiffs’ limitations, statute (c) 3-year negligence; nary date of commenced to run from the 4.16.080(2), RCW 1962; hence, claim, estate closing 1966, is barred. asserted first We agree plaintiffs. Co., & Hanover Bank Trust
In Mullane v. Central the United Ct. 652 (1950), 94 L. Ed. S. U.S. of a the provisions had before it Court Supreme States of trust administration concerning York statute New of the settlement notice statute estates, permitted which of the beneficiaries given of accounts be a notice held that such essence, the court publication. insufficient clause of the United the due under process of the the names and addresses where Constitution States could be as the trustee or known to beneficiaries on the diligence the exercise of reasonable certained that under court on hold went the trustee. part mailed notice was required. written circumstances such 314: stated, at page the court holding, In so of due and fundamental requirement elementary An to be finality accorded in any proceeding process reasonably calculated, is notice under all the circum- apprise parties pendency stances, to interested opportunity present the action ‘an their and afford them cases). objections (citing The notice must of such reasonably convey required nature as information . . . and it must afford a time for reasonable those appearance, make interested to . . . outgrowth
anAs of this decision SPR 98.04W was promulgated pertinent portions 'and the 11.28.237 of RCW 11,76.040 substance, were enacted. In the rule and require statutes that an administrator or executor of the appoint estate of decedent shall cause written notice of pendency probate proceeding, report ment, final petition timely for distribution to be mailed to each heir and distributee whose name and address is known to Although the administrator or executor. the rule and stat explicitly utes state, do not so arewe satisfied that each contemplated and all that the heirs and distributees en titled to notice included those whose names and addresses *7 by diligence were ascertainable the exercise of due on the part of the administrator or In short, executor. the rule presupposed personal representative, and statutes that a fiduciary as an officer of the court and a for the heirs and distributees, would make an earnest in effort the course lawfully of his trust to determine who would be entitled to the In estate. observed, connection we dis while cussing responsibilities personal representative the of a relation to his in In trust, re Estate Maher, 195 Wash. of (1938), 126, 131, 79 P.2d 117A.L.R. 91 duty guard against it is the of an administrator to error in by exercising greatest
the estate, distribution of an the possible persons care to see the names of the entitled under the to estate, law receive the either as heirs at law legatees, brought the to attention of court, the and respective fully that their and names interests are and correctly stated the decree of distribution which is to presented signature, be court . . . finding
In case, the instant the trial court’s that a inquiry investigation by reasonable the administrator attorney readily or his have revealed re- lationship amply supported to and interest in the estate therefore, fall the con- Plaintiffs, the evidence. within templation of and SPR 98.04W RCW 11.28.237 11.76.040 contemplated. entitled the notices therein Since were conformity notified in were not with the manda- tory provisions of rule, the statutes and and were not other- timely probate proceedings, they wise informed of the procedural process. deprivation denied due amounts Such jurisdictional rendering them, to a defect as the decree King County Rea, void. v. Wn.2d distribution (1944); P. Trautman, 152P.2d 310 Vacation Correction Judgments Washington, 35 Wash. L. Rev. 505 foregoing reached The trial court essence the conclu- against trial court the however, the dismissed action sions; surety upon grounds his the that his notify plaintiffs probate pro- failure to discover ordinary negligence ceedings which the statute agree deter- cannot with this limitations had run. We mination. is an officer
The administrator of a decedent’s estate
fiduciary relationship
in a
to those
court and stands
performance
beneficially
In
interested in
fiduciary
obligated
exercise the utmost
his
duties he is
diligence
judgment,
good
skill,
and to utilize the
faith
ordinarily
employed
cautious and
which would
management
person
prudent
of his own trust affairs.
(1915); 63,
943 superintendence of his counsel over the activities and/or or other
agent
reasonably prudent person,
a
im-
which
pressed
responsibility,
a
Execu-
trust
would exercise.
Liability
Agent, Annot.,
Acts
5 P.
The trial court further found that did not right discover their to assert a claim of inheritance in December, estate until 1965. suit This was initiated within year Accordingly, thereafter. it falls within the ambit of provides pertinent part: 4.16.110, RCW *9 944 year:
Within one (2) legatee, An an or other heir, action creditor against party administrator, or interested, an executor mismanagement alleged or of misfeasance, malfeasance year the of final estate one time settle- the within from alleged was discovered. ment, or, the time such misconduct (Italics ours.) dismissing erred in the conclude that trial court
We surety. Together they and his stand hable for misfeasance of administrator’s such loss inheritance plaintiffs. mismanagement has occasioned Harby. appeal turn of Gunda 'and Harold now to the We findings trial concluded from essence, In court its guilty failing in and Harold were of extrinsic fraud Gunda plaintiffs’ the administrator the court of exist- to advise imposed upon conclusion, ence. Based this the trial court proceeds of estate re- constructive maining accordingly in hands, Harold’s Gunda’s judgment in amount for the entered at have inherited the time distribution appeal, and Harold contend that the trial On fraudulently finding neither them acted court’s failing plaintiffs’ intent disclose to deceive exist- relationship negates a ence and conclusion extrinsic otherwise, fraud, that, claim as them (RCW 3-year statute of limitations is 4.16 barred .080(3)). that, above because of the failure
We have stated jurisdictional inherent notice, there was defect a decree void and Such is does the decree of distribution. anyone. John Hancock Ins. Mut. Co. vest title not Life Gooley, 221, P.2d 357, 83 118 A.L.R. 196 Wash. 1484 v. County (1938); King Rea, 593, 21 Wn.2d 152 v. P.2d 310 (1944); Judg Trautman, Vacation and Correction see Washington, (1960); L. Rev. 505, 35 at 530 Wash. ments (Sur. Manley, 1962); 21 Estate 226 N.Y.S.2d Ct. In re
945
(1964); Vogel
Stewart,
In re
413
A.2d
190,
Pa.
330
v.
1965).
App.
(App.
Katz,
2d
It matters what may authority *10 particu- of a court If it be. act without a judgments pro- lar case, nullities, its are mere orders tecting hindrance which is respect acting constituting one no under them and no any prosecution right. judgment the A of absolutely authority void is to no entitled or may impeached proceedings in collateral be any by the rights one with or interests it conflicts. If whose judgment jurisdiction, is a court without rendered subject persons judg- either of the the matter, of such may subjected ment be to collateral attack. The orders probate and decrees of a the same. court be Superior See also ex State rel. Patchett Court, v. 60 Wn.2d (1962). 784, 375 747 P.2d attempt case,
The instant however, is not an re open probate judgment the but rather seeks for Harby, of share the estate from Gunda and Harold from Blomberg, bonding company. administrator, and the The trial court found that a constructive trust existed. behalf argued of Gunda Harold it is that a constructive trust may imposed the absence of fraud, extrinsic finding that furthermore the trial court’s of extrinsic fraud totally finding as to them is inconsistent with its that each Implicit of was innocent fraud and intent to deceive. within argument legal party is the inference that an innocent property can hold -under a never constructive trust for a conclusion, however, others. Such is not the law concern ing (1) § trusts. constructive Restatement Restitution 201 (1937) applicable succinctly: the states law 201. of Third Liabilities Persons.
§ fiduciary (1) duty Where violation of his beneficiary transferred property property transfers or causes to be person, person, gave to a the third third if he duty, ifor he had notice of no value the violation holds property beneficiary. the the constructive for 946 (1915); Paysse Paysse, 622 86 150 P.
See also
Wash.
(1919); 5 G.
Weeks,
105
Thus, Gunda .and liable imposed by judgment However, it the trial court. possible through passage time in this case involved living pos intervening expenses, and necessities or may sibility through inflation, of estate erosion assets satisfy money the amount have diminished available only judgment. finding court with the regard trial property aspect lawsuit is that “is to this of this *11 possession, in either in the form it was distrib still recipient co-mingled [sic] other funds of the uted or nothing in record There is the before us which thereof.” any change requires How result indicated above. changes ever, not unmindful that circumstances we fully may inequitable it enforce the constructive make § of Restitution Since we trust. Restatement of our determination of the lia result remand, must bility possible bond, it his is may upon prompt remand such consideration a different judgment. superior case remanded to court for
The further with the ex- and action consistent views consideration pressed herein. JJ., Hunter, Stafford,
Rosellini, McGovern, Tern., Pro J. concur. Williams, C.J. Hamilton, (concurring part dissenting part) agreement majority when, am in full —I case, failure of under the facts of this it holds that notify plaintiffs properly the administrator to ascertain and subjects probate proceedings of the the administrator and surety liability his for the loss of inheritance occasioned plaintiffs. agree presented not,
I do however, that the facts here imposition warrant of a constructive proceeds proceeding probate delivered to Gunda in 1962. fully supports finding
The evidence trial court’s fraudulently Harold did not act or with intent innocently failing to deceive in to disclose exist- potential Maja’s ence as heirs of testimony dispute, establishes, without that follow-
ing Maja’s they surviving death, were the two members originally of an substantial number of sisters, brothers and Maja, four of Harold, Gunda, and Bertha Warm- whom— ing only had come to and lived in the United States for — many years. casually Maja’s surviving
When Gunda was asked who might replied heirs she be, in effect that she and Harold only family were the members left. She was not advised queried what the term included, “heirs” nor was she any way by anyone any as to whether there existed surviving any siblings, although children of deceased help administrator and could not but know Warming daughter that Bertha had at one time a in Nor- way Maja’s and that remains were sent there for interment. any surviving Neither was Gunda advised that if such chil- Maja’s dren did exist entitled to share in response cursory inquiry estate. Her reaction following perfectly death was a natural and normal *12 family person age, history, one for a of her and circum- every right And, stances. had she to assume that Mr. Blomberg attorney, represen- and his who had acted in a capacity Warming’s tative in the settlement of Mrs. affairs, family familiar with were either situation or would appropriately extent familiarize themselves it to the Maja’s necessary properly lawfully to settle estate. Maja’s promptly Furthermore, she 'advised knowledge demise, adminis- aid shipped family Norway. trator her remains to the home in circumstances her to the admin- Under these nondisclosure hardly as or his counsel could be characterized istrator anything other than innocent. Harby. applies in Cali- same to Harold He resided by Maja’s
fornia and was first 'advised of death funeral, crema- administrator’s after disposition At he tion, and of her remains. the same time by advised mail that he and Gunda would share was Thereafter, distribution, her he not before concerning disposition queried any of the estate. fashion right every famil- He, had to assume that the Gunda, like Blomberg iarity affairs and his counsel with the Warming, Maja, proper and Gunda would lead to a of Mrs. dis- estate under the laws of descent and disbursal Washington. Against prevailing in the state tribution background, plaintiffs’ his silence as existence does this to as fraudulent. characterized deserve be Although misrepresentation, faith, conceal- fraud, bad overreaching usually upon form the basis ment judgment there- a trust is erected and a based constructive recognized majority, imposed, is, it noted by party acquired property a that interest has been when impose upon party an such circumstances as to under convey permit duty equitable another, him it to unjust enrichment, it result in an then to retain would Beatty remedy. steps provides equity conscience Exploration Guggenheim, 225 N.Y. Co., N.E. Although cannot denied and Harold it be that Gunda enriched retention of be will that it can cate- estate, I do not conceive share of they unjustly gorically enriched to said that be date, at late should, become sub- the extent money judgment against personal ject of a the lien *13 liability litigate them and be forced to further the surety. administrator and his entirely liquid estate consisted assets—cash corporate
and some shares of were distrib- stock—which equally, value-wise, uted to Harold. This dis- Gunda and They respective occurred in 1962. their tribution received pursuant shares to a entitled court order which were validly to believe was entered at the under behest auspices attorney, upon his judgment they fully rely, skill whose entitled adequately compensated and who were for their services. found, As the trial court and as seem inevitable large circumstances, under the shares, distributed indistinguishably commingled have extent, become personal majority point and, assets out, as the it is entirely possible passage living, that the time, cost substantially and the erosion inflation have tended initially diminish the values Furthermore, received. granted against have in essence been their relief surety nothing significance
the administrator and his gained by joint judgment them is to be and several against Gunda and Harold. considered,
All factors I am view equity compel conscience of would be so shocked as to imposition judgment of a or a lien .constructive particular parties. the estates of these Equitably speaking, judgment then, I would vacate the against 'and dismiss Alternatively, judgment action as to them. if for the legalistically, against amounts involved must, be entered grant judgment them, I would them over the ad- surety. ministrator
Neill, J., J. Tern., Pro Donworth, concur Ham- ilton, C.J.