DocketNumber: No. 15151
Citation Numbers: 107 Wash. 25, 181 P. 209, 1919 Wash. LEXIS 1026
Judges: Tolman
Filed Date: 5/13/1919
Status: Precedential
Modified Date: 10/19/2024
This is a proceeding brought by the heirs and legatees of David Steele Johnston, to set aside the order approving the final account of the administrator with the will annexed and the decree of distribution, and to obtain an accounting from such administrator. Also a like proceeding on behalf of the legatee of Marie Helen Johnston, based largely upon the same facts. It appears from the petition in the D. S. Johnston estate that the decedent died in Pierce county, Washington, on August 11, 1913, leaving a nonintervention will, by the terms of which he bequeathed to the petitioners James Ronald Simon and George Howard Simon, minor grandsons, the sum' of $5,000 each. The household effects, jewelry, and silverware, were left to the widow, and the remainder of the estate was devised in certain allotted shares to the widow and certain children and grandchildren of the testator. The widow was named as executrix, without bond. The will was admitted to probate in Pierce county. The widow, Marie Helen Johnston, was confirmed as executrix, and entered upon her duties as such. On September 6, 1913, an inventory and appraisement were filed, showing the total value
The main contentions grow out of the manner in which the administrator handled some 347 vacant and unimproved lots lying in Woodlawn addition to Tacoma, appraised at $15,000; and 1,200 shares of the capital stock of Eilers Music House, a corporation, appraised at $100,000. We have with infinite care accomplished the herculean task of carefully reading and considering the 387 pages of printed briefs and the 177 pages of the abstract of the record; and the abstract proving to be argumentative and partisan, we have also been obliged to give,the same painstaking study to the 151 pages of the record, the 306 pages of the statement of facts, and the voluminous files in both
The trial court, after a full hearing upon the petitions, so far sustained them as to direct that the final report and account of the administrator and the decree of distribution in both estates be vacated, and the administrator was directed to file a new report and full accounting within twenty days. With this order the administrator complied and filed new final accounts not differing materially from the accounts which had been previously attacked and set aside. To these accounts or reports, petitioners filed objections and exceptions, raising the same issues as were previously raised by the petitions; and the matter coming on to be heard upon the exceptions in a different department and before another judge, upon the testimony previously taken, the trial court, after consideration, made an order to the effect that it was improper for him to review the rulings of an associate judge still sitting, or to express his views upon a matter already passed upon in another department of the same court, and directed that the exceptions be overruled and that the last report of the administrator in each case be approved as his former reports were approved in the other department, from which order in each case this appeal is prosecuted.
The motion to dismiss the appeal is not well taken and will be denied without a discussion of the reasons therefor.
*34 ■ “We are not holding in this ease that the superior court has no jurisdiction to set aside a decree settling a final account upon a proper showing.”
Nor has the plain language of the statute been anywhere limited by construction, so far as we are now advised. Since we have found that there was no fraud proven, but that the irregularities, which cannot be denied, are sufficient under the statute to justify the vacation of the order and decree, we need not consider those cases in which it was sought to set aside a decree on the ground of fraud, after the expiration of the time fixed by the statute, either by direct or collateral attack. If, then, the trial court was justified in setting aside the order and decree because of irregularities in obtaining it, arising from the failure to comply with the statutes then in force governing the presentation, allowance, and filing of claims against the estate, whereby the decree was caused to recite the approval of, and the approval of the payment of, claims which the record failed to disclose and which could not then be legally enforced, we must now inquire whether, after the filing of a new account and. the taking of evidence touching all of the charges made by the petitioners, and the objections and exceptions to the final account, in which proceeding all parties in interest were represented, the final account should have been approved.
We cannot discuss, or even state, many of appellant’s contentions; but those not stated or discussed have been fully considered and found to be without merit. Confining this opinion to the principal contentions, we will very briefly refer to the following:
■ I. The lots in Woodlawn addition were appraised at $15,000, the greater part being covered by a mortgage for $3,800, upon which there was considerable accrued interest, and all being subject to taxes and
*37 “. . . if any has been sold for less than the appraisement, he shall not be responsible for the loss if the sale has been unjustly (justly) made.”
From which it is argued that, if the sale has been unjustly made, the administrator will be held to be liable. It will be observed that the intent of the statute is to create liability only when a sale has been unjustly made, and not when irregularly made. It must be conceded that these sales were irregularly made; but our careful study of the facts convinces us that, in view of the location and character of the property, the encumbrances thereon, and the condition of the market during the period in question, not only is there no evidence that the sales were unjustly made, but, on the contrary, the course followed by the administrator was probably the only course which would have enabled the estate to realize anything out of this property, and, therefore, there is no liability under the statute referred to. Still less is there a double liability under Rem. Code, § 1532.
• II. The 1,200 shares of the capital stock of Eilers Music House, appraised at $100,000, were never sold, and shortly after the appraisement was made, the Eilers Music House became, if it was not already, involved in financial difficulties, and a committee of its creditors took charge of its affairs and remained in control for some time. True this committee was discharged before the estate was closed, but the corporation shortly thereafter went into bankruptcy, and at no time since the death of Mr. Johnston has it paid any dividends, nor has the stock had a market value. If it were ever saleable at all, which is extremely doubtful, it could have been sold only to some one already identified with the business, and presumably at a price not greater than its real value, and it is not reasonable to suppose that any person connected with the business
III. The claims against the estate which were paid by the administrator amounting to $2,934.50, some of which were presented after the expiration of the statutory time, some of which bore no indorsement of approval of either the administrator or the judge, were no doubt irregularly paid. If the question were presented here by the holder, attempting to enforce payment upon a claim lacking something which the statute required him to do, we should be obliged to hold
IV. The penciled memorandum in the inventory of “money $631.49,” is not shown to. have been money coming into the hands of the administrator. Respondent was appointed on April 4, 1914, and his inventory, which is a duplicate of the inventory theretofore filed by his predecessor, is dated January 3, 1915. The record contains no explanation of this item, respondent seemed wholly unable to explain it, and the only plausible explanation which occurs to us, supposing the memorandum to have been made by respondent in his own handwriting, is that, during the time which elapsed between the making of the first inventory and the making of the second inventory, this amount of money had been realized from some of the other items shown on the inventories. Petitioners do not attempt to show that any such amount of money was due the estate from any source, or ever came into respondent’s hands, and we think the only fair inference is that, if it be a memorandum of money received, it was money realized from the other property inventoried.
V. The court in approving the final account allowed respondent $1,025 as attorney’s fees, earned as attorney for Marie Helen Johnston during the time she acted as executrix; and it is stipulated that three well known and reputable members of the Pierce county bar would testify that the services were worth that sum. The allowance was made, and this testimony would have been given, upon the theory that the estate had assets of upwards of $144,000; while, as we have seen, by reason of there ‘having been but little, if any, real value in the Woodlawn lots, and in the Eilers Music House stock, the actual value of the estate was hardly more than one-fourth that amount. The value of the estate being always an item to be taken into considera
VI. The court allowed the statutory administrator’s fees, based upon the appraised value of the estate. While the appraised value may be the prima facie value, if nothing to the contrary is shown, here we have ample evidence of the real value, and the fees should have been based thereon. It is contended, however, that, under the authority of In re Anderson, 97 Wash. 688, 167 Pac. 71, no fees whatever should be allowed. We hold, however, from the whole record, that no fraud or misappropriation whatever has been shown. The respondent here had to, and did, show great resourcefulness and ability in handling and conserving the estate. His fault lay in not keeping proper records and accounts, in not procuring authority before he acted, in unintentionally, we think, misleading the heirs in his correspondence and reports, which was due primarily to his failure to keep accounts and refer to them for the facts in writing to the heirs, and in claiming excessive compensation. Our study of the record convinces us that a final account should be approved and an allowance of fees made as follows:
Money received from the sale of lots in Woodlawn addition through the sales agent $1,474.75
Money received on such contracts, paid direct to the administrator.......... 475.00
Received from Eilers Music House from sale of uncollected contracts................. 1,850.00
Received from Hr. Balabanoff............. 900.00
Less amount paid by the administrator toward removing encumbrances............ 2,000.00
Amount actually received from sale of lots in Woodlawn addition......:............ $2,699.75
To this should be added the loan from Eilers Music House, secured by stock as collateral 7,500.00
Deposited in National Bank of Tacoma..... 131.49 Collected from Eilers Music House debt due
deceased .............................. $2,000.00 Received from Howard A. Johnston as ad-
vances ................................ 400.50
Total cash received from all sources........$12,731.74
Disbursements on account of lots in Woodlawn addition :
Payment of taxes, commission, and attorney’s fees............................. $152.43
Expenses of administration, taxes, inheritance tax, guardian ad litem fees, and attorney’s fees as reduced................ 3,117.69
Payment of claims against estate.......... 2,934.50
Total disbursements...................... $6,204.61
Net cash on hand......................... 6,527.13
For the purpose of fixing the administrator’s fees, the following items should be considered:
Total cash received by administrator from all sources, as before set forth, less advances by Howard A. Johnston, which were not a part of the estate..................$12,331.24
Value of real estate conveyed to National
Bank of Tacoma ih satisfaction of debts.. 24,000.00 Appraised value of household goods........ 3,500.00
Total value of estate.....................$39,831.24
Statutory fees on this amount............. 1,633.24
With reference to the estate of Marie Helen Johnston, deceased, the respondent, as administrator with the will annexed, inventoried as assets of that estate $1,025 as commissions allowed the deceased as executrix of the estate of D. S. Johnston, which amount we have seen must be reduced to $286. The administrator also included in the inventory, and claimed commissions upon, the household furniture, etc., belonging to the estate of D. S. Johnston, which, as we have seen, was administered in that estate. Fees have been allowed thereon, and it must be held that such household property did not pass into the respondent’s possession as administrator of the Marie Helen Johnston estate, and he is not entitled to compute administrator’s fees again upon the value of that property. Respondent also inventoried and was allowed fees upon 200 shares of the capital stock of Filers Music House, being the one-sixth interest in the 1,200 shares belonging to the estate of D. S. Johnston, deceased, which might have come to Marie Helen Johnston, had the same ever been
Cash collected on Detroit mortgage...........$528.66
Fees as executrix of the estate of D. S. Johnston, deceased ............................ 286.00
Total cash received and total value of estate... $814.66
From which should be deducted the following disbursements :
Premium on bond........................... $66.67
Clerk’s fees................................ 10.75
Publication of notice to creditors............. 5.00
Filing final account and publication of show cause order.............................. 10.00
Statutory administrator’s fees............... 57.02
Total disbursements........................$149.44
Leaving on hand and subject to distribution under the terms of the will................... 665.22
The judgment appealed from is reversed, with directions to proceed in harmony with the views herein expressed. Appellant will not be permitted to recover costs of the abstract.
Chadwick, C. J., Mitchell, Mackintosh, and Main, JJ., concur.
[Decided August 5, 1919.]
The decision in this case is silent on the matter of interest; and also fails to make mention of a payment of $500 made by the administrator with the will annexed of the estate of Marie Helen Johnston to Howard A. Johnston, the legatee. Interest is properly allowable upon the balance in the hands of the administrator on July 1, 1916, at the legal rate, and, of course, the payment to the legatee, which is not disputed, must be credited as of the time it was made. This expression of the views of this court may he read in connection with the original opinion, so that there may he no uncertainty as to its meaning upon these points.