48 Wash. 631 | Wash. | 1908
Lead Opinion
In this cause the superior court entered a judgment declaring who are the lawful distributees of the estate of John Sullivan, deceased. The several appeals hereinafter mentioned bring that judgment here for review. The deceased died in Seattle on September 26, 1900. He owned several tracts of real estate in Seattle, one of which consisted of two lots on First avenue upon which stood, and now stands, the four-story brick building known as the “Sullivan Building.” That property is very valuable. Mr. Sullivan was a' native of Ireland, and left that country when a very young man, first embarking upon a ship as a sailor. He came to Seattle many years ago, and was thereafter a resident of that city until the time of his death. In the year 1900 he visited Ireland and parts of the continent of Europe. He returned
Edward Corcoran, of Dublin, Ireland, and Hannah or Johanna Callaghan, of Cork, Ireland, first asserted their claim to the estate in the year 1901, claiming as first cousins of the deceased. The final account of the administrator was filed in November, 1902, and the said Corcoran and Callaghan, claimants, filed a petition for distribution of the estate in the same month. The final account was settled in January, 1903, and the petition for distribution came on for hearing, but was continued from time to time until in November and December, 1906. Meantime other claims of heirship were made, and the state of Washington and county of King filed a petition for the escheat of the entire estate, on the alleged ground that the deceased died without heirs. Depositions in behalf of the various claimants were taken from time to time in Ireland and at different places in the United States and Canada. Under different commissions a number of witnesses who had formerly testified were reexamined. Through the medium of the depositions a large amount of evidence, both oral and documentary, was secured. This evidence, together with oral evidence heard at the time of the hearing, was submitted for the consideration of the court.' After an extended hearing, the court made and entered findings of facts and conclusions of law, the substance of the more important and pertinent ones being hereinafter stated.
From the foregoing facts the court concluded that Edward Corcoran is entitled to an undivided one-fourth of said estate
There are five appeals from the decree of the trial court, representing as many distinct interests: (1) Cornelius Sullivan, who claims the entire estate as a surviving brother of the deceased John Sullivan; (2) Margaret Sullivan Desmond, Michael Sullivan, Johanna Sullivan, Roger Sullivan, and Philip Sullivan, who claim to be second cousins of the deceased, and that they are. his next of kin and only heirs at law; (3) Maria Lester, Thomas Sullivan, Catherine McClellan, Margaret Croke, Ann Brooks, Martin Dwyer, Mary Ryan, Mary O’Brien, Alice Whalen, Dennis J. Sullivan, Timothy Sullivan, • Owen Sullivan, Elizabeth Fatherby, Margaret Lusty, Catherine Brown, Rose Hodgins, Michael Hickey, John Hickey, Mary Nagle, Nora O’Leary, and Ann McCabe, who claim to be first cousins of the deceased; (4)
We think the findings of the trial court are sustained by evidence that is convincing. That evidence was to the effect that John Sullivan’s parents were Peter Sullivan and Abigail McAuliffe, who were married at the church of St. Finbarr, in Cork, Ireland, in 1832. The parish records show the baptism of the children of this marriage as follows: Eliza in 1834, Ellen in 1836, and John in 1840. In all of these entries of baptism the names of the parents are given as Peter Sullivan and Abigail McAuliffe, except that in the case of the baptism of Eliza the name of the mother is given as “Abbey” Mc-Auliffe. Investigation by counsel for the state and county discovered in the said parish records a record of the baptism of a fourth child of said parents, the child’s name being
Margaret Sullivan Desmond and her group of claimants admit the identity of John Sullivan’s family as above stated, but they claim their relationship from the father’s side, and that they are second cousins of the deceased. The survivor-ship of Corcoran and Callaghan as first cousins being established, it follows that the Margaret Sullivan Desmond group of claimants as second cousins are not entitled, under our statute, to share in the estate, for the reason that Bal. Code, § 4620, subd. 5 (P. C. § 2702), provides that in such case the descent shall be to the next of kin. The provision is as follows :
“If the decedent leaves no issue, nor husband nor wife, and no father nor mother, nor brother nor sister, the estate must go to the next of kin, in equal degree, excepting that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor must be preferred to those claiming through an ancestor more remote.”
Under that statute first cousins are preferred to second cousins.
The Maria Lester and Dennis J. Sullivan group of claimants do not deny the identity of John Sulliván’s parentage as found by the court, but they claim that they are first cousins of the deceased from his father’s side of the family. The testimony in support of these claims is not convincing to us. Many of the claimants now reside in the United States and Canada, and their testimony is largely of a somewhat traditional character, by which they show that they have heard declarations from other members of their family that, from the marriage of their ancestors Timothy Sullivan and Hanor, Hanorah, or Mary Burke, there were born seven sons and two daughters, one of the sons being Peter, who, they claim, was
The claimant Cornelius Sullivan denies the identity of the deceased’s parentage as above set forth, and claims that he is a surviving brother of the deceased. He asserts that the name of the deceased’s father was Cornelius Sullivan, and that he was married to Johanna Harrington. He says that the above were the parents of five children, John, Mary, Jerry, Kate, and Cornelius; that the oldest, John, was the deceased John Sullivan, and that the youngest is the claimant himself. He produced witnesses who testified that they had heard John Sullivan say that he had a brother Cornelius, and also a brother Jerry. Some witnesses testified that a Avoman came to Seattle some years ago and remained some weeks, who Avas in and about the store of the deceased and to whom they heard him refer as his sister. The claimant says this was his sister Mary, but that he is unable to find what became of her after she left Seattle. This appears to constitute a chain of facts based upon the declarations of the deceased, but to establish them the claimant must assert, and does do so, that the deceased SAVore falsely Avhen he made oath that he was the surviving brother of Eliza Sullivan and Ellen de Silva in order that he might withdraw their deposits from the bank in Ireland, and that, too, but a few months before his death. As against the positive testimony of many Irish Avitnesses who knew the family from the childhood of Sullivan, that he was their brother, and as against his oAvn solemn oath to the same fact, we cannot consider the testimony submitted by this claimant as convincing.
The claimants the state of Washington and county of King do not deny the identity of the parentage of the de
The appeals of Terence O’Brien, individually and as administrator, raise the question that the court erred in decreeing a distribution of any part of the estate until all of the administrator’s accounts, final and supplemental, have been fully settled. A motion has been made to dismiss these appeals, one on the ground that as administrator he has no appealable interest, and the other on the ground that as an individual he took no exceptions to the finding of the court that his final account was settled in January, }903. That account has, in the light of subsequent history, become other than a final
An account settled in January, 1903, was called the administrator’s final account, but the necessity for prolonged administration having arisen by reason of contests between claimants for the estate, other and supplemental accounts .have become necessary. The court found that the administrator had in his hands, in January, 1903, after the settling of his final account, $1,120.42; that he has since that time received and disbursed certain sums of money on account of said estate, and that as shown by his last supplemental report he has in his hands a large sum of money belonging to the estate. The decree declares that said money belongs to, and should be paid to, the distributees, after deducting therefrom such amounts as the administrator shall by the court be authorized to deduct. A supplemental report, filed by the administrator by direction of the court on the day the decree of distribution was entered, showed a balance of cash in his hands of $27,424.34. The court doubtless anticipated that this sum would be sufficient to meet the administrator’s additional fees and other expenses, and so made the decree that the whole sum could be used for that purpose if required, but provided that any balance left shall be paid to the distributees. The additional amount to be allowed the administrator is yet to be determined after a full hearing upon that subject. More than a year has elapsed since said supplemental report was filed, and the sum in the administrator’s hands must have materially increased from the estate’s rent receipts. While the sum would be a large fund to reserve for settlement with an administrator of an ordinary
The decree is in all respects affirmed except as to the modification above indicated, and the cause is remanded with instructions to proceed in accordance with this opinion. The appellant O’Brien in whatever capacity he has appealed shall recover his costs on appeal, and the respondents shall recover their costs on all the other appeals.
Mount, Dunrar, Fullerton, Crow, and Rudkin, JJ., concur.
Before I became a member of the court, the firm of attorneys of which I was a member appeared in the superior court for certain persons claiming to have an interest as heirs in this estate — however none of such claimants is now before this court. There being in my mind some question as to my qualification to participate, I have taken no part in any of the decisions rendered by this court in the matter of said
Rehearing
On Rehearing.
[Decided April 17, 1908.]
The appellants state and county, and also Cornelius Sullivan, have filed petitions for rehearing herein. In the petition of the state and county vigorous complaint is made of the following statement in the opinion: [Ante p. 639, 94 Pac. 486.] “The claimants, the state of Washington and county of King, do not deny the identity of the parentage of the deceased as asserted by the respondents.” We concede that the statement quoted, when considered alone, is inaccurate, and we do not desire that counsel’s contention shall be misunderstood by reason thereof. The entire sentence from which the above is taken reads as follows: “The claimants, the state of Washington and county of King, do not deny the identity of the parentage of the deceased as asserted by the respondents, and in their brief they admit that if any fact is established by the evidence, it is established that John Sullivan was the brother of Eliza Sullivan and Ellen de Silva, but they assert that Sullivan died without surviving heirs.” The above statement in the opinion was based upon the following, which we here quote from the opening brief of appellants state and county, at pages 180, 181:
“Cornelius Sullivan claims as a brother to the deceased through wholly different parentage and necessarily repudiates Bessie Sullivan and Ellen Silva as sisters of the deceased. Like respondents, however, the evidence to establish Cornelius Sullivan’s relationship depends largely and principally upon memory testimony of witnesses; and, regardless of how strong this testimony may be, the fact that John Sullivan has made sworn statements that Bessie Sullivan and Ellen Silva were his sisters, and the correspondence between Mrs. Lyons and John Sullivan, extending over a period of more than twenty years, with reference to the sister Bessie, and the character of that correspondence, unquestionably establishes that Bessie Sullivan and Ellen Silva were his sisters. If any fact is established by the evidence, it is the relationship of the deceased with these two sisters.”
Counsel complain that the statement as made in the opinion puts them in the position of conceding a fact which they had never admitted. The explanatory correction herein made in no way affects the result in our minds, and we have made the statement for the reason that the writer of this and the former opinion, and also the members of the court desire that no apparent injustice may be done to counsel, who have certainly been untiring and vigilant in their efforts to secure what they in their petition for rehearing call “a splendid heritage to the school children of the state.” The petition of Cornelius Sullivan is practically a reargument of the evidence as it was submitted at the hearing. We see no reason for changing our views of the evidence, and both petitions are denied.