Webster v. Seattle Trust Co.

The opinion of the court was delivered by

Stiles, J.

Henry A. Webster died in 1883, leaving a will made in 1876. At the date of the will he was a married man, and had one child, a minor, who died before his father. Two other children were born after the date of the will, and survived their father, and they and the widow were the heirs at law of the decedent’s estate. The will contained but one disposing clause, aside from a direction for the payment of debts, which was as follows:

“I give, bequeath and devise all my estate, real and personal, of which I may die seized and possessed, to my wife, Mary Elizabeth Webster, now living at Port Townsend, Washington Territory, during her lifetime; what remains of the same at her death shall revert to my heirs at law. ”

Probate of the will was had in 1883, in Jefferson county; and thereafter, in the year 1881, upon petition of the widow and executrix, the probate court ordered a distribution of the estate, in accordance with the statutes of descent, viz., one-half of the community property and one-third of the separate property to the widow, and one-fourth of the community and one-third of the sepai’ate property to each of the children. In arriving at this result the court found that, “whereas the failure to mention the minor heirs in said will, they having been born after said will, (Henry A. Webster) did in accordance with §1325 of Code of 1881, die intestate.”

This case arises upon an action brought by the widow in 1892, to compel specific performance of a contract made by her with the appellant, the Seattle Trust Company, for the sale of lot 1, section 27, township 25 north, range 1 east, in King county, wherein she covenanted for the conveyance of an unincumbered fee simple title. This tract was included in the inventory of property administered upon in Jefferson county, and was there found to be the separate property of the deceased. In the record of the case there is an exemplified copy of the record in the probate court of Jefferson county, including certain orders which we have not yet mentioned, but which are not to be lost sight of. Subsequent to the order of distribution, and in September, 1881, an order of the probate court appears, which recites that it has been satisfactorily shown to the court that the real estate of the decedent, which included numerous tracts of land in each of nine counties in the territory, is incapable of fair and actual partition or division amongst the heirs at law; therefore, upon the petition of the executrix, and upon the consent of the guardian of the children, an order of sale of the whole of this property at public auction is made. Pursuant to this order appears a return of sale of the tract in question to J ames E. Hayden, a confirmation of the sale, and an executrix’ deed to the purchaser, December 11, 1884. On December 16, 1884, Hayden and wife quitclaimed the tract to Mrs. Webster, the respondent.

The course of proceeding taken in this case, both in the superior court and here, by both parties, seems to ignore all of the recorded acts of the probate court of Jefferson county subsequent to the probate of the will. The complaint alleges that, notwithstanding that the children of Webster were in effect named in the will, and were provided for therein, and that the will was a valid and operative will in all respects upon the whole estate of the decedent, “the said probate court, without formal adjudication, however, did treat the said will as absolutely void, and did proceed to administer the said estate in all respects as if the said decedent had died intestate. ’ ’ The proof upon this point is silent, excepting through the production of the record, and the finding of the superior court is merely that after the proof of the will the probate court did “treat the will as void, ’ ’ and proceeded to administer the estate as though Webster had died intestate. Nothing at all .is made of the sale by the executrix to Hayden, or of his conveyance to Mrs. Webster. In short, there are two questions presented here, both of which are based upon the will itself, from which alone it is assumed the title is to flow: (1) Did Webster die intestate as to his children? (2) Has Mrs. Webster any power of sale under the will, and if she has, does it cover only her life estate, or can she alienate the fee ?

It is somewhat embarrassing to feel compelled to go outside of the case presented by counsel, but we are unable to understand, as at present advised, why the order of distribution of the probate court, made uearly ten years ago and not appealed from, should not now stand; and why all courts are not estopped to construe the will upon the first point above stated. That court had full jurisdiction to determine the matter of distribution, both upon questions of law and fact, and it is not shown that anything was wanting to its exercise of its power at the time of its action. Both the subject matter and the persons were before it, and it rendered its judgment, not informally, as the complaint here alleges, but with as much formality as is displayed in any part of the voluminous proceedings in this record. The exact phrase used, viz., that Webster died “intestate,” was not quite correct, inasmuch as the statute limited the intestacy, if any, to the children, and the will for all other purposes remained. But Mrs. Webster was duly appointed executrix, not administratrix, and, as required by the will, she served without bond, showing that the will was not lost sight of. From this order of distribution an appeal lay to the district and supreme court of the territory, and the supreme court of the United States; but the record does not show this adjudication to have ever been reversed. On the contrary the very next proceeding is an application upon the part of Mrs. Webster, in her capacity of executrix, for a sale of the real estate, because it could not be fairly partitioned; showing that she was accepting and availing herself of the judgment of the probate court. Unless, therefore, there be some other undisclosed feature of the case, we think the court below was in error in ruling that Mrs. 'Webster took anything but the estate allowed her by the will in one-third of the realty.

Concerning the sale made by the probate court we shall express no opinion. It was apparently not presented to the court below, as it has not been here. If it was a valid sale, then, of course, the j udgment of the superior court was right although the reasons were not, and the appellant must take the title; if, on the other hand, the sale was tainted by illegality, the right to have performance of the contract may fail. In the present condition of the case we do not feel justified in making any disposition of it upon the basis of the executrix’ deed.

Reversed, and complaint dismissed.

By this termination of the case we do not intend to preclude any right the respondent may have to tender a deed based upon her deed from Hayden.

Dunbar, C. 3., and Scott and Anders, JJ., concur.

Hoyt, J., disqualified.