28 Wash. 677 | Wash. | 1902
The opinion of thei court was delivered by
— This is an original application in this court for a writ of certiorari directed to the superior court of King County and the Hon. Boyd J. Tallman, one of the judges thereof. The application shows that on the 14th day of April, 1901, one Charlotte B. Richardson died testate, leaving an estate1 of real and personal property in said King county; that on the 15th day of April, 1901, there was presented to- said superior court the last will and testament of the deceased, as executed by her on the 24th day of June, 1897, and on said 15th day of April said superior court made an order admitting said will to probate, and appointing relator executor of the estate in accordance
It is thus sought by relator to review the action of the superior court in admitting to probate the will of 1892, and in appointing said Atkins administrator with said will annexed. Relator urges that, by his appeal from the judgment annulling the will under which he was appointed executor, a.11 further proceedings were stayed. Respondent contends that further proceedings were not stayed in the absence of a supersedeas bond. It is doubtful if the supersedeas bond would serve any purpose in such a case. Relator having been appointed executor of a will which had been admitted to' probate,' his right to defend the validity thereof, even to the extent of an appeal, cannot be seriously disputed. • Provision is made by statute that the estate itself shall pay the costs and expenses resulting from a will contest. Section 6116, Ral. Code, is as follows:
“The fees and expenses shall be paid by the losing party. If the probate be revoked or the will annulled,*681 tlie party who shall have resisted such revocation shall pay the costs and expenses of proceedings out of the property of the deceased.”
It thus appears that, even if relator should not prevail upon his appeal, the costs and expenses must be paid by the estate itself. Delator has appealed in his representative, and not in his individual, capacity; and no individual liability can arise, for the reason that he is acting in behalf of the will, which was once admitted to probate, and also in behalf of those claiming under it. It becomes the •duty of an executor under such circumstances to defend against an attack upon the will which he represents, and the legislature has properly provided that the expense thereof shall be paid from the estate itself. Should an executor give a cost bond on appeal in such a case, a personal liability does not. arise thereon, since the estate must pay the costs. If the estate must pay the costs of proceedings, it is difficult to' see how damages in favor of the estate may be predicated, which could be secured by a so-called supersedeas bond. Such a bond would be, in •effect, given to- the estate, but to be paid by the estate itself. We therefore think the absence of a supersedeas bond does not affect the rights of the parties - pending •appeal in such a case. To what extent, then, are further proceedings stayed by the appeal, if at all? Does the ■appeal have- the effect to authorize relator to continue acting for all purposes as executor, notwithstanding .the judgment entered by the court? We think not. The appeal has the effect to continue him as executor for the purposes of the appeal, but it. does not revive all his ■general powers, as executor, since the judgment of the •court is expressly to- the effect that such powers no longer •exist. If the appeal should have the effect to restore all the general powers of executor, then the relator by liis
“The Code provides for an appeal from thei order of' revocation, and therefore the statute keeps alive, ad interim, appellant’s character’ as executor for the purposes-of the appeal; hut in all other respects the powers and functions of the former executor are suspended when the revocation is ended. (§ 1331). If his powers can be-fully revived by an appeal, he can not only control the-orders of the lower court, hut-, of his own volition, rercreate himself an executor.”
It was held in the above case that, inasmuch as the-appeal did not revive- the power of the executor, the court had power to- appoint a special administrator to take-charge of the estate pending the determination of the-appeal. The casei of In re Moore’s Estate, 86 Cal. 72 (2d Pac. 8d6), is to- the same- effect, and, furthermore,, intimates that, while- it is within the power of the court to appoint a special administrator during the period of suspension by appeal, yet it has not power to appoint a general administrator during such period. In harmony with the California rule, relator here asked the superior court to appoint- a special administrator to act pending the appeal; and it is urged as proper matter for review by certiorari here that- the court appointed a general administrator, with the- last probated will annexed, with-full power to- proceed to- final settlement and distribution-of the estate, notwithstanding re-lator’s appeal. It is insisted hy relator that he has no- appeal from the order-appointing the general administrator, for the reason that the order was made in an ere parte proceeding to which he was not a party, and that it is not an appealable order.
Our conclusion, therefore, is that the action of the court is not revicAvable here by certiorari, and the writ is denied for the purpose of revieAving that matter. But while Ave may not review that matter here to the extent
We therefore decline to review the appointment of the general administrator, or toi interfere with his custody of the estate, but it is ordered that the lower court shall direct him not to- make distribution of the estate pending the aforesaid appeal. His functions will thus, for the time being, serve all the purposes of a special administrator, and preserve the estate for those who shall in the end be found entitled to it.
Reavis, C. J\, and Euleebton, White, Mount and Dunbab, JJ., concur.
Andebs, J., concurs in the residt.