6 Wash. 285 | Wash. | 1893
Lead Opinion
The opinion of the court was delivered by
The respondent filed his petition in the probate department of the court below, praying that the appellants, as executors of the last will and testament of George D. Hill, deceased, be ordered to render an account of the community estate of Ellen K. and George D. Hill, both deceased, and to surrender up and deliver the same over unto the said petitioner to be administered by him as the administrator de bonis non cum testamento annexo of the last will and testament of Ellen K. Hill. To this petition the appellants demurred, and the demurrer being overruled and an order being entered in favor of said petitioner as prayed, appellants elected to stand thereon and have perfected their appeal from said order to this court.
The facts as shown by the petition and confessed by the demurrer are briefly stated as follows: On the léth day of February, 1887, Ellen K. Hill died testate at the city of Seattle, where she had for many years resided with her
In Ryan v. Fergusson, 3 Wash. 356 (28 Pac. Rep. 910), we held that upon the death of either husband or wife,
Where the separate property of the deceased, and the community property of the deceased and the surviving spouse, is administered, the same should be kept separate, for the separate debts of the deceased would be primarily a charge upon the separate property, and the community debts would be primarily a charge upon the community property. In case there should not be enough of the separate property to pay the separate debts, the deficiency could be made good out of the decedent’s intei’est in the community property, should there be anything remaining after the payment of the community debts, and the same would be true with regard to a deficiency of the community property, as after the separate debts had been paid the remainder of the separate property would be liable for the community debts so remaining unpaid. However, where administration has been had of the separate property of the deceased, and the whole of the community property, or even only of the half interest of the community property belonging to the deceased, and the same has not been kept separate, but the property has been commingled indiscriminately, and the separate debts of the deceased and the community debts have not been classified or kept separate, but have been dealt with in common as standing upon an equal footing against all of the property, regardless as to whether it was the separate property of the deceased or the community property, or a part of it, and the same has been allowed to go through unquestioned by the creditors, or any of them, or any of the parties interested, such administration at most would only be irregular, and not void.
We are also of the opinion that administration may be
In this case, upon the death of the wife, her separate
We are of the opinion, however, that a husband or wife cannot appoint an executor to take charge of the community estate to the exclusion of the surviving spouse, but the survivor would be the only one who could question the same. Such an appointment would be good as against all others. Although in the administration of such estates a separate account should be kept of the community property and of the separate property of the decedent, yet, as- a matter of convenience and economy as well, the whole should be in the hands of the same person for the purposes of administration. But this need not be so necessarily as a matter of law, and could not be, at least ordinarily, where the appointment of the executor named by the decedent is not consented to by the surviving husband or wife, or where the survivor does not waive his or her rights in the premises. Where the person named as executor in the will cannot, for the reasons stated, be appointed to take charge of the community estate, an administrator thereof should be appointed, to which appointment the surviving spouse, or the person he or she might nominate, would have preference. Sec. 900, Code Proc. Such administrator would be entitled to the whole of the community estate for the purposes of administration. But the administration of such separate estate of the deceased and of the community property would be one proceeding in the sense that it would only be necessary for creditors to present their claims once.
The deceased died testate, but she appointed her husband executor, and he entered upon the administration of her separate estate, and the whole of the community estate. Upon his death the orderly procedure would have been to
In this case the creditors, at least all of the community creditors, would be barred by reason of the notice published, and their failure to object, from raising any question against administering the community property in the settlement of the estate of George D. Hill.- Whether the creditors of her separate estate could raise any question* thereover, in case her separate property was not suflicient to satisfy their claims, is more difficult to determine, but it is sufficient to say that none of the creditors in this instance are complaining, and the claim of the petitioner rests upon his * sole personal right to administer the community property. It seems as though it would be incumbent on her separate creditors to move with diligence after receiving notice, to have the community property administered in the settlement of her estate unless they were satisfied to take the risk of having their claims paid in full out of her separate property, and did not desire to preserve any right against the community estate for any deficiency that might result.
It appears that the representatives of Geoi’ge D. Hill entered upon the administration of his estate in the month of December, 1890, and continued the administration of the community property. No one objected to this, but said proceedings were allowed to go unquestioned for some two years, and until the month of December, 1892, when the petitioner instituted this proceeding to recover possession of the community estate. It does not appear that
We are also of the opinion in any event in a case like this the ordinary rules relating to the liability of executors de son tort Avould not apply, even in the absence of a statute upon the subject, although we have one which would have some bearing thereon, §708, Code Proc. And that such an administration of community property could amount to nothing more than an irregularity, of which advantage must be seasonably taken during the pendency of the proceeding, if at all, and otherwise that the same Avould be valid as far as the question of the right of the representative of either spouse to administer the same is involved. The liabilities of the estate in either eArent would, of course, be the same as to claims presented.
It appears in this case that in the administration of the estate of George D. Hill a notice was duly published to creditors; and his creditors, including all the creditors of the commuuity as far as known, have presented their claims, and the time for presenting claims in the settlement of said estate has expired. It would be a hardship upon these creditors who have presented their demands
It seems that George D. Hill published no notice to creditors in administering his wife’s estate. The petitioner has done so, however, and the time for presenting claims therein has not yet expired.
Ho complaint is made that his estate has been mismanaged in its settlement. In fact it is admitted that the executors of George D. Hill’s estate are thoroughly skillful and competent, and that they have been and are well and faithfully discharging the trust. We are of the opinion that the petitioner is estopped from setting up any claim of right to administer the community property in question, and the decision of the superior court is reversed, and the cause remanded for further proceedings. There may be some question as to whether the point upon which this case is determined — the question of estoppel — is raised by the appellants in their brief. The facts, however, are stated, although the question of estoppel itself is not therein argued. In some instances the court may take notice of a point not argued, for the purpose of arriving at a just decision upon the merits, although a different rule might be invoked to avoid a harsh decision. This seems to be within the spirit of § 1448, Code Proc., and is one of the purposes which this statute may well serve.
Hoyt and Anders, JJ., concur.
Concurrence Opinion
I concur in the result reached in the foregoing opinion, but I think many matters have been argued and decided which are not in this case. The rights of
Dunbar, C. J., dissents.