63 Wash. 623 | Wash. | 1911
This case came on for trial in the superior court and before a jury under the direction of this court (In re Sloan’s Estate, 50 Wash. 86, 96 Pac. 684, 17 L. R. A., N. S., 960), wherein the court said:
“We therefore hold that the proofs in the record amply show that the appellant and Mary Steves were never lawfully married, and that the property involved in this action is not community property. If the respondents have any interest in the property as children or grandchildren of Mary Steves, deceased, the burden is upon them to establish that fact, as it does not arise out of any marriage relation. We cannot anticipate the questions that may arise in the further progress of the trial, and all such questions must be left open for future consideration. We do hold, however, that if it should appear that there was no lawful marriage between the appellant and the deceased, that the deceased was at all times fully aware of their meretricious relations, and that in view of such relations their property was kept separate and apart; the respondents have no right or interest in the property now in controversy.”
Reference to the former decision may be had for a history of the relations of Samuel Sloan and Mary Steves, or Mary Sloan as she was known prior to the filing of the petition of Samuel Sloan to set aside the property which had been listed as community property in the probate proceeding. Notwithstanding the fact that this court in its former decision held that Samuel Sloan and Mary Steves were not, and had not been during the many years of their consort, husband and wife, and that the only question open was whether the heirs of Mary Steves could bear the burden of showing an interest in the property arising outside of the marriage relation, that issue seems to have been gone over again, and the court, upon the whole evidence, directed
“While in law and fact said property was and is the separate estate of Samuel Sloan, he always held out the said Mary Sloan to the world as his lawful wife during the long period of their cohabitation; that upon her death he requested the said D. W. West to act as the administrator of her estate, and represented to him that said property was the community property of said deceased and himself, from a desire to conceal from the world the fact of their true relationship.”
And further, that it was agreed between Samuel Sloan and Mary Steves,
" “That all property acquired by the said Samuel Sloan in his own name should be the property of the said Samuel Sloan, free and clear from any right, title, or claim of the said Mary Steves or Mary Sloan, and that all property acquired in the name of Mary Sloan or Mary Steves should be the property of the said Mary Sloan or Mary Steves, free and clear of any right, title, or claim of the said Samuel Sloan.”
The court denied the asserted claims of the administrator and the heirs of Mary Steves, but allowed compensation to the administrator and his attorneys, and to Mr. Gephart, who has acted as guardian ad litem for a minor heir.
As suggested in the former opinion, the burden of showing an interest in the property which is now in controversy was upon the defendants, for the law. is that, unless there be in fact a marriage, there can be no community property. The
The court has found, and there is some evidence to sustain his conclusion, that there was an agreement between the parties to keep their property separate. Under the oft-repeated ruling of this court that we will not disturb a finding entered upon conflicting testimony unless manifestly unjust, we shall not discuss the question of tenancy in common and other questions raised by defendants upon the theory that there was no such agreement.
An assignment of error to which counsel has devoted some strength of argument is that the court erred in refusing to submit all questions of fact to the jui’y, instead of, as it did, submitting the one question of marriage, and thereafter determining other questions as a chancellor. If the right of
It is also asserted that Samuel Sloan should not be heard to deny the community character of the property. It is true that he permitted the property now remaining to be inventoried with other property a part of which has been sold to meet debts and expenses; and his present assertion that he supposed the property, which had been in the name of Mary Sloan and which had been conveyed to a daughter, was to be included and administered upon as a part of the estate, is not entirely satisfactory to the writer of this opinion. Yet we feel that the character of the property is not an open question. It was squarely presented on the former appeal. We have taken the liberty to review the briefs and records in that case, and it being a question of law merely, we must assume that the court would have so held and sent the case back for distribution, instead of holding that the title to the property was in Samuel Sloan subject only to defeasance by something not appearing in the former record. We have said enough to cover the propositions submitted by defendants; that is, (1) Was there a legal marriage between Samuel Sloan and Mary Steves? (2) If there was no valid marriage, was Mary Sloan in her lifetime vested with any interest, legal or equitable, in the property? and (3) has Samuel Sloan estopped himself from claiming the property to be his separate property? and will proceed to discuss the cross-appeal of Samuel Sloan, who comes here challenging the right of the court to allow fees to the administrator, his counsel, and the guardian ad litem.
“In this state we have no probate court, properly speaking, as distinguished from the court that entertains jurisdiction of other matters. The court of general jurisdiction also hears and determines probate matters. Matters pertaining to probate are referred to what is called ‘probate procedure,’ as distinguished from what is denominated ‘civil’ or ‘criminal procedure.’ But when the court, sitting in a probate proceeding, discovers in a petition the statement of facts which forms the basis of a controversy, we see no reason why it may not settle the issues thereunder when an appearance has been*629 made thereto, and then proceed to try it in a proper manner, as any other civil cause.”
But it does not follow that an issue being framed to try an independent controversy, the court is to be precluded of its right to close the case under its probate jurisdiction. It is the same court, operating upon the same subject-matter, with plenary jurisdiction to hear and determine; and although it may, for its own convenience, divide its work into departments and send an issue from one department to another, its right to proceed to final judgment or decree is not impaired. The property was brought to the superior court in a probate proceeding as the common property of Samuel Sloan and Mary Sloan, and the court exercised a proper jurisdiction when it held that there was no property for distribution, and that the expenses of the proceeding should be met by the one who had submitted his property to the court. Plaintiff cites the following decisions of this court to sustain his contention: State ex rel. Bogle v. Superior Court, ante p. 96, 114 Pac. 905, and Michaelson v. Seattle, ante p. 230, 115 Pac. 167. But we do not conceive these cases to be in point. They were independent actions. There was no element of estoppel, and while we may admit that there is no issue framed- by the pleadings, the disputed questions were tried out and the findings of the court are within its jurisdiction and.discretion, independent of the collateral issue as to the title of the property. The administrator was appointed with the knowledge and acquiescence of Samuel Sloan, and the attorneys were .employed by him, and the appointment of a guardian ad litem was a necessary incident to the probate proceeding. Plaintiff was a moving party. He permitted his property to remain in probate for several years. He allowed part of it to be sold to meet debts and expenses, and he allowed the proceeding to continue until ripe for distribution, and then, because he conceived, as he puts it, that “they were not treating him right,” he asserts a claim which on its face was so doubtful
Affirmed.
Morris, Crow, Ellis, and Gose, JJ., concur.