29 Wash. 422 | Wash. | 1902
The opinion of the court, was delivered by
This was an application by petition to the superior court of King county, in probate, for an order upon the executrix of the will of James Reid Macdonald, deceased, to show cause why she should not be removed, and letters testamentary be issued to some other person.
The material facts, as declared by the record, are as follows: James Reid Macdonald died in San Francisco, California., on November 1, 1893. By his will he bequeathed the sum of $1,000 to each of his four minor children, and devised and bequeathed the residue of his property to his wife, Mary Ij. Macdonald, whom he appointed executrix of said will. This will authorized the executrix to settle and distribute the estate without, the intervention of the court and without giving bonds, which the testator was empowered to do by § 955, 2 Hill’s Code. Such wills are commonly designated in this state as “non-intervention wills.” The will was duly admitted to probate, and on November 27, 1893, letters testamentary were, issued to said executrix. Thereafter she caused to be published a
In her answer to the petition, Mrs. Macdonald denies that she is now, or since August II, 1896, has been, the executrix of the last will and testament of James Reid Macdonald, deceased; that, after the probate of said will and the qualification of said executrix, the said estate has been managed find controlled without the intervention of the above entitled court, but alleges that estate was administered under the express direction and control of the said court; that she, as said executrix, appeared in said action in said circuit court of the United States and filed an answer therein, hut alleges that she appeared personally and specially, and filed an answer in that capacity; that she has moved from the state of Washington and taken the greater portion, if not all,' of the property of said estate, as alleged in the petition herein, and alleges that she has at all times maintained her home in King
At the trial in the superior court the records of the circuit court in the suit, against Mrs. Macdonald as executrix, including the judgment therein, were introduced in evidence; and also the transcript of said judgment. And upon the pleadings, evidence; and stipulation of the parties filed in the cause, the court found, among other things, that the will of the deceased was what is. commonly known as a “non-intervention will,” authorizing the executrix therein named to manage; control, and settle the estate of the said deceased without, the intervention of any court whatsoever; that she was appointed on, her own petition to have said will probated, and herself appointed executrix, and that the decree authorized her to act without bonds, under the authority of the will; and that she duly qualified as executrix of the will, and took charge of said estate. The court further found that subsequent proceedings were had by her, which are shown by the record, and which have already been stated, and need not he repeated. Thei court alsoi found that the said Mary L. Macdonald at all times since the rendition of the judgment in the circuit court had in her possession funds belonging to the. said estate sufficient to pay said judgment, and that
The first claim of error seems to' be based upon the assumption that the judgment of the federal court in the controversy between these same parties is simply an adjudication that at the death of the deceased he was the owner of certain shares of stock, upon which a valid assessment had been levied by the comptroller of thei currency, and that the question whether or not such obligation has been perfected or reduced to' an enforceable claim against the personal representative of the deceased, and whether it had been, presented in time, and whether she has funds with which to pay, are each and all of them vital questions in the cause1, upon which the circuit court did not pass. Several authorities are cited by .the learned counsel for the appellant as to the powers and duties of the federal courts in actions against the personal representatives of deceased persons, the one principally relied on being Wickham v. Hull, 60 Fed. 326. That was a bill filed, by the receiver of a national bank against the executors of the last will of A. H. Hull, deceased, to enforce collection of an assessment upon certain shares of capital stock of the bank, belonging to -.he estate. And it was there held that the estate of a deceased owner of national bank stock is liable, under § 5152 of the Revised Statutes of the United States, to an assessment levied against his executors in consequence of the failure of the bank after his death; that the federal court is not deprived of jurisdiction of a suit against the executors of an estate hy the fact that the estate is in the possession of a probate court for the purpose of administration; and that the federal court has jnrisdic
In the action in the federal circuit court between the receiver and the appellant here, it was claimed by the appellant that she was not liable, in a representative capacity •or otherwise, for the1 assessment upon the bank stock in question, for the reason that she had been discharged from her trust as executrix by a court of competent jurisdiction after notice to; all parties, concerned; and the same claim is made in this- proceeding. The¡ circuit court, in the above mentioned action, found, as shown by the recitals in its decree, among other things, that Mary L. Macdonald (appellant here) has been ever since November 27, 1893, the duly appointed, acting, and qualified executrix of the last will of James Beid Macdonald, deceased; that said deceased was at the time of his death the owner and in the possession of property in King county, Washington, and that all of said property, in an amount largely in excess of complainant’s claim therein, and liable to
*433 “As the law makes no, provision for discharging an executrix whoi assumes toi carry out the provisions of a will in settling up, the estate of a deceased person without other authority than the will itself, exemption, from liability incident to ownership of any property which belonged to the deceased in his lifetime cannot be claimed until the title to, all personal property of the deceased has been transferred, and until the heirs have obtained possession of all real property. A decree, will be entered according to the prayer of the bill.”
But it is earnestly insisted on behalf of the appellant that there was no evidence whatever toi sustain the finding that appellant at the time of the rendition of the judgment by the circuit court, or at any time since, had in her possession funds belonging to said estate sufficient to, pay said judgment, or that said judgment is, the only claim against said estate. As to this contention, we think counsel is in error. In the first place, the judgment of the federal court established the fact that the appellant, at, that time had funds in her possession, undistributed, sufficient to pay this claim of the receiver, and that it was the only debt of the estate; and, in the second place, it appears by the verified statement of the appellant, which was presented to the superior* court, that the deceased left a large amount of property, which it is conceded came into her hands as administratrix of the estate; that there were practically no debts, except debts of the firm of Fischer & Macdonald, which she admits and declares in her brief were paid soon after her appointment, as administratrix; and that! she disposed of the deceased’s interest in said firm for $25,000. It also, appears from the record that at the time of her alleged discharge she had sufficient funds, with which to pay the legacies specified in the will amounting to, $4,000, and that she procured her appointment as guardian of the estates of her children, and as such guardian, received the
As to the point made by the appellant that the respondent’s claim was not presented within one year from the
We have discovered no, error in the record, and the judgment is therefore affirmed.
Reavis, O. J., and Mount and Dunbak, J7J\, concur.
Ruhlekton, J\, dissents.