Scott v. McNeal

The opinion of the court was delivered by

Scott, J.

This was an action of ejectment brought by appellant against the respondents to recocer possession of certain lands in Thurston county. The defendants claim the same under a deed from Samuel C. Ward, who had purchased the land at an administrator’s sale. In March, 1881, the appellant, who was at that time a resident of Thurston county, in this state, then territory, mysteriously disappeared. At that time he was the owner of the lands in question, the same being subject to a mortgage given to one T. F. McElroy. After a lapse of over seven years one Mary Scott, who claimed to be a creditor of the appellant, filed a petition in the probate court of said county, alleging the fact of Scott’s disappearance more than seven years previously, and that careful inquiry made by his relatives and friends at different times since said disappearance had failed to give any knowledge or information of his whereabouts, or any evidence that he was still living; and alleged that she verily believed him to be dead, and that he had died at the time of his disappearance; that he was never married, and left no last will or testament; and that he left real estate (being the land in controversy) in Thurston county. She also named several minor children of his deceased brother as his heirs; that she was a creditor, etc., and prayed for an administration of his estate. A notice of the hearing of said petition was given, and upon the day set for the hearing witnesses were examined and the court found from said testimony that said Scott was dead, and appointed an administrator as prayed for.

A number of objections are raised to the probate records, some of which go to the jurisdiction of the court relating to the sufficiency of the petition, and the posting of notices. Appellant alleges that the petition was defective in that it did not state that said Scott was a resident of Thurston county at the time of his death. The allegation in the petition is:

“That one Moses H. Scott, heretofore a resident of the above named county and territory (Thurston county, Washington Territory), mysteriously disappeared some time during the month of March, A. D. 1881, and more than seven years ago.”

We think this was sufficient, as the word “heretofore” should be held to relate to the time of his disappearance.

He also objects to the proof of the posting of notices because it appears from the affidavit of the person posting the same that he had posted three of the notices in three public places in Thurston county, as the law required, without stating where they were posted. At the hearing, however, the court found that due notice of said hearing had been posted in three public places, as required by the statute, and we think the petition, notice and proof were sufficient to give the probate court jurisdiction.

The estate was administered step by step down to a sale of the lands to said Ward, and the records were introduced in evidence against numerous objections made by the appellant. These objections, however, were mainly aimed at irregularities in the proceedings, which did not affect the jurisdiction of the court, and appellant was not in a position to take advantage of them in a collateral action. In addition to the records of the probate court in said matter, a deed from Ward to defendants was also admitted in evidence.

Appellant was a witness in his own behalf, but he made no attempt to explain his manner of leaving or his absence.

The defendants, after purchasing the property, took possession of it, and made valuable improvements. They stand in the position of innocent purchasers, and the question is, under this peculiar condition of affairs, which one of the parties must suffer? The equities of the case seem to be clearly with the defendants, for, as the matter appears, appellant willfully abandoned the property in question, and he certainly had reason to expect that proceedings of the kind would be instituted after a lapse of years in case his relatives, and other interested parties, should not be able to obtain any information of his existence or whereabouts.

It is argued, however, that to give effect to these probate proceedings, under the circumstances, would be to deprive him of his property without due process of law. The question is a very interesting one. It has been passed upon by other courts, and the decisions are conflicting. The action of the lower court in this instance is sustained by the case of Roderigas v. East River Savings Institution, 63 N. Y. 460. This case has received much adverse criticism, and also some favorable comments. The appellant argues that it would be inapplicable here, because, under the New York statutes, the court, in an application for letters of administration, had authority to find the fact as to the death of the intestate, while under the laws of this territory this was not a matter in issue. But we are unable to agree with him. Our statutes only authorize administration of the estates of deceased persons, and before granting letters of administration the court must be satisfied by proof of the death of the intestate. The proceeding is substantially in rem, and all parties must be held to have received notice of the institution and pendency of such proceedings where notice is given as required by law. Sec. 1299 of the 1881 Code gave the probate court exclusive original jurisdiction in such matters, and authorized such court to summon parties and witnesses, and examine them touching any matter in controversy before said court or in the exercise of its jurisdiction.

We are of the opinion that it would serve no good purpose to undertake a review of the various cases and criticisms bearing upon this subject, but content ourselves with a reference to Woerner’s Am. Law of Administration, §§ 210, 211, and authorities there cited.

Under the circumstances of this case, and after the best examination we have been able to give the matter, we are inclined to follow the Boderigas case.

The judgment of the court below is affirmed.

Anders, C. J., and Dunbar, Hoyt and Stiles, JJ., concur.