127 Wash. 583 | Wash. | 1923
Lead Opinion
The relators, being children of and residuary legatees under the last will and testament of Jorgen B. Jakobsen, deceased, seek a writ from this court requiring the superior court for King county to take jurisdiction of and proceed with a hearing upon their petition filed in that court asking that the executor of the will of Jorgen B. Jakobsen, deceased, he directed to appeal to this court from a certain judgment rendered by the superior court for King county establishing a claim against the estate.
Prom the undenied allegations of relators’ petition filed in this court and the return of the superior court to the alternative writ issued thereon, the controlling facts may be summarized as follows: On January 1, 1922, Jorgen B. Jakobsen died in King county, leaving his non-intervention last will and testament, wherein, after certain specific bequests, he named these relators, his children and only heirs, as residuary legatees. The will was duly admitted to probate in the superior court for King county and the naming of Edwin W. Kemoe as executor confirmed by the court. Thereafter one Jenny Sommerseth presented to the executor her verified claim against the estate, claiming compensation for services rendered the deceased during his lifetime in the sum of $1,000. This claim was first allowed by the executor, but upon objection thereto by these re-lators it was by the court disallowed; such objection being made, and by consent of all concerned submitted to the court by the executor as though the estate were being administered in the usual manner under the direction of the court rather than exclusively under the terms of the non-intervention will. Thereupon the claimant commenced an action in the superior court for King county seeking recovery upon her claim. Thereupon, on motion of the attorney for the executor, . the court appointed Tracy E. Griffin, of the firm of
“It appearing to the court that the executor is acting under a non-intervention will, the court has no power to require the executor to appeal in said cause.”
The ground of the superior court’s ruling upon the question of its jurisdiction is rendered plain by the above quotation from its order, so our problem is as to whether or not the superior court has jurisdiction to make inquiry and decide whether or not it is the duty of the executor to appeal from the judgment of the superior court here drawn in question. The fact that the will of the deceased is a non-intervention will, we think, does not argue that the court may not, upon a proper showing, draw to itself jurisdiction and assume partial, as well as entire, control of the administration of estates being administered under non-intervention wills. In § 1462, Rem. Comp. Stat. [P. C. § 9967], relating to non-intervention wills and authorizing the settlement of estates thereunder without intervention of the courts, we note the following proviso:
“. . . if the person named in the will shall fail to execute the trust faithfully and to take care and promote the interest of all parties, then, upon petition of a creditor of suchl estate, or of any of the heirs, or of any person on behalf of any minor heir, it shall be the duty of the court to cite such person having the management of such estate to appear before such court, and if, upon hearing of such petition it shall appear that the trust in such will is not faithfully discharged, and that the parties interested, or any of them have been or are about to be damaged by such actual doings of the executor, then, in the discretion of the court, administration may be had and required as is now required in the administration of estates, . . . ”
The argument here made in behalf of the executor seems to be that the court must assume entire control
No question is here raised as to the manner or form of bringing this controversy into this court. It seems to be in form a mandamus proceeding, but it could be as well termed review or certiorari, and it is manifest that an appeal from the court’s order refusing to assume jurisdiction would be wholly inadequate, in view of the fact that the time for appeal from the judgment of the superior court establishing the claim is
The writ should issue as prayed for, directing tbe superior court to assume jurisdiction and proceed as herein indicated. It is so ordered.
Dissenting Opinion
(dissenting) — I agree with the. trial judge in that the lower court had no jurisdiction over an executor under a non-intervention will. Nor do I think this court has any more than the superior court. The writ should be denied.
I therefore dissent.