102 Wash. 697 | Wash. | 1918
This appeal is from an order of the lower court refusing to appoint an administrator of the estate of Mary Collins, deceased.
On October 30, 1911, Mary Collins, a widow, conveyed to the appellant, T. O. Nelson, forty acres of land in Lewis county. The appellant and wife executed a mortgage upon this land to Mary Collins to secure the payment of $1,000, being one-half the purchase price thereof. The note for $1,000 was due and payable in five years from its date. On March 4, 1913, before the note became due, Mary Collins died intestate, leaving four children, namely, Lucy Dickson, James Collins, Daisy Harris, and George Collins. There were no other heirs, and each of these was more than twenty-one years of age. The only assets of the estate consisted of the debt owing by Nelson. After
We are of the opinion that the trial court erred in refusing to appoint a suitable person as administrator of the estate. It is no doubt true, as argued by the respondents, that the assignee of the note and mortgage would be authorized to receive payment and satisfy the mortgage in case there was a valid assignment thereof; but before there could be a valid assignment of the note and mortgage by the heirs of the deceased, after her death, it must appear that such heirs were authorized to make a valid assignment. Their right to make a valid assignment depended upon the fact that there were no debts against the estate; for the statute, at $ 1364, provides that, when any person shall die possessed of property not disposed of by his will, such property shall be subject to the payment of the debts of the deceased. It is plain that, if there were any debts against the estate of the deceased, the heirs would not be authorized to transfer the estate so as to avoid these debts. It is true James Collins, a wit
It is apparent that this was but the opinion of the witness. Furthermore, we are satisfied the fact could not be proved in that way; for this court, in State ex rel. Mann v. Superior Court, 52 Wash. 149, 100 Pac. 198, said:
“One of the purposes of administration is the payment of the debts of the deceased and the barring of claims against the estate. A mere statement or affidavit that there are no such claims cannot establish that fact. Such fact can only be judicially established by due course of administration. If the will of the testator had first been admitted to probate in this state and the widow applied for letters of administration upon the estate, we apprehend that the heirs or devisees could not defeat her right by asserting that there were no debts against the estate and no necessity for administration. ’ ’
This court has held that a claim against an estate is not barred by lapse of time where no notice to creditors has been published as required by law. Donnerberg v. Oppenheimer, 15 Wash. 290, 46 Pac. 254; McFarland v. Fairlamb, 18 Wash. 601, 52 Pac. 239; Gleason v. Hawkins, 32 Wash. 464, 73 Pac. 533.
So it is plain that there may be debts, and if there are debts against the estate which were not barred before the death of the intestate, such debts are not now barred, because no administrator has been appointed and no notice to creditors has been published. Since the fact of no debts can be established only by the appointment of an administrator and notice to creditors, it follows that there was no proof that there are no debts, and the heirs of the deceased were not au
The order appealed from is therefore reversed, and remanded with directions to the lower court to appoint the appellant or some suitable person administrator of the estate.
Main, C. J., Holcomb, Chadwick, and Mackintosh, JJ., concur.