76 Wash. 72 | Wash. | 1913
Appeal of Peter McGregor, one of the executors of the last will and testament of Albert J. Hooper, from an order removing him as such executor.
On January 27, 1908, Albert J. Hooper, a resident of Adams county, died testate, having executed a nonintervention will and a codicil thereto. These instruments were duly admitted to probate by the superior court of Adams county, and Lavina Z. Hooper, widow of the decedent, Albert Ernest Hooper, son of the decedent, and the appellant, Peter Mc-Gregor, named in the will as executrix and executors, were, in August, 1908, qualified as such without letters testamentary. On January 16, 1909, they filed an inventory and appraisement, which discloses that the testator died seised of an undivided one-half interest in three hundred and sixty acres of land, appraised at $3,600, and 190 shares of the capital stock of the Hooper Land and Livestock Company, a corporation, appraised at $147 per share, or $27,930, which constituted his entire estate. The Hooper Land and Livestock Company had been incorporated with a capital stock of 450 shares, of the par value of $100 each. At the date of the testator’s death, he held and owned 190 shares; Lavina Z. Hooper, his widow, held and owned 100 shares; Arthur E. Hooper, his brother, held and owned 150 shares; and Albert Ernest Hooper, his son, held and owned 10 shares. By his will, the testator devised his undivided one-half of the real estate to his son Albert Ernest Hooper, the same to vest immediately. He further devised seven and one-half shares of the capital stock of the Hooper Land and Livestock Company to each of his seven children, Mary Hooper Taylor, Alice Hooper, Albert Ernest Hooper, Ethel Hooper, Helen Hooper, Raymond Hooper, and Walter Victor Hooper; two shares to each of his grandchildren, Roena Marie Bruihl and Agnes Zeph Bruihl; and three shares to each of his grandchildren, Dewey Dale Bruihl and Mabel Hooper Bruihl; the total devises of capital stock thus
The will provided that the capital stock devised to the testator’s children should not be distributed to them prior to the year 1918 (except as otherwise in the will provided), and that until such time the same should be held in trust by the executrix and executors, who should annually pay to the widow of the decedent, for her use and benefit, the net income earned by the respective shares thus bequeathed to the children, until such time as they should severally attain the age of twenty-one years; and that upon attaining the age of twenty-one years, and annually thereafter until the year 1918, each child should receive the net income of his or her respective shares. Relative to the stock devised to the grandchildren, the will further provided that it should not be distributed to them prior to the year 1924; that until such time the stock should be held in trust by the executrix and executors, who should annually pay to the widow of the decedent, for her use and benefit, the net income earned by the respective shares thus bequeathed, until such time as the grandchildren should severally attain the age of twenty-one years; and that annually thereafter, and until the year 1924, each grandchild should receive the net income of his or her respective shares. The ninth paragraph of the will reads as follows’:
“I do hereby will and direct that if at any time before the aforesaid years 1918, or 1924, my said executrix and executors or such of them as may accept said trust or the survivors of them or a majority of them, shall deem it for the best interests of my estate or any of my aforesaid children or grandchildren, to sell or otherwise dispose of all or any portion of the respective shares of stock in the aforesaid ‘Hooper Land & Livestock Company,’ a corporation, I herein bequeath any such child or grandchildren, that my said executrix and*75 executors, or such of them as may accept said trust or the survivors of them or a majority of them, in their discretion, are hereby authorized and fully empowered to sell or otherwise dispose of any such shares of stock, and for this purpose to execute any and all instruments under seal or otherwise, requisite and necessary therefor, and in such event, or any child or grandchild attaining the age of 21 years, to advance and pay over unto any such child or grandchild attaining the age of 21 years, aforesaid, the full sum then realized from any such sale or other disposal thereof, less the actual expenses necessarily incurred on account of any such sale or transfer, and of which due account must be kept, and such sale and transfer to be in all respects as valid and binding as if I myself had been living and executed the same.”
It is conceded that the estate was solvent and free from debt, but the record fails to show that any finding of solvency was made or entered by the superior court, or that any notice to creditors was published. An order was entered reciting that notice to creditors had' been published; that a year had elapsed; and that creditors were barred. This order was entered at the instance of attorneys representing the executrix and executors. No proof of any publication was made or filed, and the trial court finding that no publication had in fact been made, vacated the order barring creditors. No claims of creditors were presented other than one presented by a sister of the decedent. This claim was at first rejected by the executors, but was finally paid by Albert Ernest Hooper, individually.
Immediately after the testator’s death, Albert Ernest Hooper assumed exclusive possession and control of the real estate devised to him, and the widow, under the terms of the will, at once became the owner of the 127% shares of stock devised to her as hereinbefore stated, subject, however, to a lien in favor of Raymond Hooper and Walter Victor Hooper for their respective legacies of $1,500 each. Lavina Z. Hooper and Albert Ernest Hooper, as officers and a majority of the trustees of the Hooper Land and Livestock Company, took immediate charge and control of that cor
By the various transactions above mentioned, and under the management of Albert Ernest Hooper, the corporation became involved for a very considerable indebtedness, and the widow, who had in the meantime purchased from her son the undivided half of the land which had been devised to him, and had indorsed his notes in other transactions, also became
Sometime after the completion of these various changes and transfers, Lavina Z. Hooper became dissatisfied with the leases which she and the corporation had made., She concluded that the rental she was receiving was inadequate and unjust. Thereupon, she requested the Taylor Land and Livestock Company to surrender the leases. This the Taylor Land and
“Whether or not Lavina Z. Hooper and Albert Ernest Hooper were overreached in the matter of leasing the property by Peter McGregor is beyond the scope of this inquiry. Their transaction in such matter was purely personal and private transaction. It affected the conditions of the trust reposed in them as executors in no way whatever. If Lavina Z. Hooper has cause for complaint and redress concerning said transaction, it is as an individual and against him or them who overreached and defrauded her. . . .
“It now appears satisfactorily to the court that there never was any notice to creditors published at any time or at all; and that this order above referred to was, by the court, inadvertently granted, and its recitals are untrue, and that it should be vacated and held for naught; and it is now so found and held. . . .
“It also appears that no order of solvency has been made and entered upon the coming in of the inventory, or upon any other showing in the probate proceedings herein. It must be and is found, as a fact, that the estate was in fact solvent. . . .
“Eor the reasons, therefore, and those reasons only, that the executors failed and neglected to cause notice to creditors to be published in proper time or at all, and for the reason that*79 they have indifferently attended to their duties as executors, and for the reason that there is such hostility between the executors (as executors) and the beneficiaries as might interfere with their proper management of the estate, the court is convinced that the exercise of a proper discretion in this matter requires that the said executors be and they will be removéd.”
It is apparent that this proceeding was not in reality instituted to protect rights of Raymond Hooper, who had recently arrived at the age of majority, but that its real purpose was to test the validity of the leases to the Taylor Land and Livestock Company and in some manner secure their cancellation. The leases
The controlling question before us is not whether Peter McGregor fraudulently obtained the leases, but whether he has been guilty of fraudulent acts or failure to discharge his duties, to the injury or detriment of the petitioner, Raymond Hooper. The petitioner’s capital stock was sold for $200 per share, under the authority of paragraph nine of the will. We are satisfied, and the trial court was satisfied, that it was sold for all it was worth. The purchase money due the petitioner from the sale, and his $1,500 legacy, were amply protected
The petitioner, in his brief, fails to show wherein he has been injured or has sustained any loss. The entire burden of his argument is that some undue advantage has been taken of Lavina Z. Hooper by the appellant in the purchase of the live stock and in obtaining the leases. That issue does not concern the petitioner. The trial court could make no order relative to the leases which would be binding upon the lessee corporation. The vital question presented herein is, whether Peter McGregor, as executor, has faithfully cared for and promoted the interest of all parties taking under the will. 'Before an order for his removal would be authorized, it would be necessary to find that some trust created by the will has not been faithfully discharged, and that the parties interested, or some of them, have been damaged, or are about to be damaged, by his acts. If, under the authority of Rem. & Bal. Code, § 1444 (P. C. 409 § 283), the trial court, upon a proper petition and hearing, should find that the trust created by the will has not been faithfully discharged, and that parties interested, or any of them, have been, or are about to be, damaged by the executor’s acts, it could then order the issuance of letters testamentary, and thereafter all matters and proceedings in the estate would be conducted as in the usual administration of estates under the supervision of the court. The order removing Peter McGregor as executor was not justified.
The failure to publish notice to creditors was an irregularity, as was also the failure of the trial court to enter an order declaring the solvency of the estate. It is conceded, however, that the estate was solvent and free from debt. As far as Peter McGregor is concerned, the record shows that he has faithfully secured and protected every interest of the petitioner.
Parker, Gose, and Mount, JJ., concur.