25 Wn.2d 328, In the Matter of the Estate of G. R. HAUKELI, Deceased. KNUTE HAUKELI et al., Appellants, v. PAULINE HAUKELI, as Administratrix, Respondent
[No. 29876. Department One.      Supreme Court      July 8, 1946.]
In the Matter of the Estate of G. R. HAUKELI, Deceased.
           KNUTE HAUKELI et al., Appellants, v. PAULINE HAUKELI,
                     as Administratrix, Respondent.«1»

[3] Where an order setting aside to the widow property in lieu of homestead is entered pursuant to the provisions of the statute (Rem. Rev. Stat., § 1473), after due notice and hearing, and is not appealed from, such order

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is final and cannot be successfully challenged by motion to vacate it after time for appeal has expired except for fraud.

[4] The alleged fraud, which is a basis of the petition to set aside the order of November 22, 1944, awarding the home property to the widow, is that the value of the property was grossly underestimated and fraudulently represented to the court to be worth only six thousand dollars when its true value exceeded ten thousand dollars.

The allegation is insufficient to raise a question of fraud, as the charge pertains only to a question of the value of the property, which question inhered in the order entered by the court and could only be reviewed on appeal. There is no allegation by petitioners of fraud of such a nature as to justify equitable relief.

[5] When fraud is alleged as a basis for collateral attack upon a judgment or decree, it must be extrinsic or collateral to the issues tried in the proceedings which are attacked, or,

". . . as sometimes stated, there must have been fraud in procuring the original judgment or decree." Farley v. Davis, 10 Wn. (2d) 62, 71, 116 P. (2d) 263.

"It is settled law in this state that orders and decrees of distribution made by superior courts in probate proceedings upon due notice as provided by statute are final adjudications having the effect of judgments in rem, and are conclusive and binding upon all persons having any interest in the estate and upon all the world as well. . . .

"`Extrinsic or collateral fraud,' justifying equitable relief against a judgment or decree, means some intentional act or conduct by which the prevailing party has prevented the unsuccessful party from having a fair submission of the controversy." Farley v. Davis, 10 Wn. (2d) 62, 70, 116 P. (2d) 263.

In Farley v. Davis, supra, it was contended that certain property was actually worth twice the amount for which it was sold. We held that all questions affecting the sale were matters intrinsic in the probate proceeding and were concluded by the order of confirmation and the subsequent decree of distribution unless there be an affirmative showing of fraud.

[6] The contention that the posting, for at least ten days

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prior to the date fixed for the hearing, in three public places in the county in which the hearing is to be held, of notice of the hearing on the petition for setting aside property to the widow in lieu of homestead, did not give sufficient time to the heirs at law in Norway to appear and defend their rights, hence permits them to be deprived of property without due process of law, is without substantial merit. Notice by posting, as provided by Rem. Rev. Stat., § 1473, constitutes due notice and has the same effect as actual notice. The proceeding is one in rem, and notice by posting or publication may be authorized by the legislature in such cases.

As the court set apart by the order of November 22, 1944, a one-half interest in the home property to the widow in lieu of homestead and that order becoming final because no appeal was taken therefrom, the court was authorized by the statute (Rem. Rev. Stat., § 1533 P.P.C. § 192-191) to dispose of the remaining one-half interest in the home property other than the one-half interest set aside to the widow. The statute (Rem. Rev. Stat., § 1533) provides that, at the time of the hearing of the final report and petition for distribution of the estate, the court may partition among the persons entitled thereto the estate held in common and undivided, and designate and distribute their respective shares; ". . . or assign the whole or any part of said estate to one or more of the persons entitled to share therein. That the person or persons to whom said estate is assigned shall pay or secure to the other parties interested in said estate their just proportion of the value thereof as determined by the court from the appraisement, or from any other evidence which the court may require. Rem. Rev. Stat., § 1533.

In the final report and petition of the administratrix for distribution is a recital that an undivided one-half interest in and to the home property set aside to the widow in lieu of homestead was appraised, by the appraisers appointed by the court, at the sum of six thousand dollars and the widow's one-half interest was therefore of the value of three thousand dollars; that, as the home property in its entirety was impossible of division, the surviving widow prayed that she be awarded the remaining one-half

336 IN RE HAUKELI'S ESTATE. [25 Wn. (2d)

interest in the home property, and that she be charged out of her share of the other assets of the estate sufficient to reimburse the other heirs on account of that award to her.

The court appointed three disinterested witnesses, as provided by the statute (Rem. Rev. Stat., § 1533), who appraised the home property as an entirety as of the then market value of $7,500; that is, the undivided one-half interest in the property - any question as to the award of the other one-half interest to the widow is foreclosed by the order entered November 22, 1944 - which the widow sought to acquire was of the value of $3,750. Under the statute, respondent, surviving widow, would be entitled to one half, or $1,875, and appellant heirs at law would be entitled to $1,875, which the court awarded.

[7] The administratrix employed a real estate broker to find a buyer for apartment house property of the estate, which the court authorized the administratrix to sell. The real estate agent found a buyer for the property at eight thousand dollars. The administratrix orally agreed to pay to the broker the going commission of five per cent on the sale price. The agent found a buyer for the property, and the administratrix paid to him a commission of four hundred dollars, which the court allowed as a proper item of expense of administration.

Appellants contend that an agreement authorizing a broker to sell or purchase real estate for a commission is void unless such agreement is in writing. As an alternative, appellants argue that, if the agreement be held valid, the broker s commission was an expense of administration and should have been paid out of the personal property.

The statute (Rem. Rev. Stat., § 1526 [P.P.C. § 192-5])provides that the administratrix shall be allowed all necessary expenses in the care, management, and settlement of the estate. An executor or administrator may, at the expense of the estate, employ agents for services of administration such as in their nature require a degree of skill which is not within the command of ordinary persons. Under the circumstances of this case, the employment of the broker to find a purchaser for the apartment house was

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proper. The rule governing the employment of agents for such services as in their nature require a degree of skill which is not within the command of ordinary persons, governs the employment of brokers.

"An executor or administrator may, at the expense of the estate, employ agents for extraordinary services of administration and for such services as, in their nature, require a degree of skill which is not within the command of ordinary persons. Thus, an executor may employ a broker where authority to sell is directly or indirectly given by the will or where such employment is permitted by statute. Even in the absence of testamentary or statutory authority, he may employ a broker under proper circumstances. Obviously the principles of law governing the employment of brokers or other agents apply to the employment of auctioneers. Generally, however, in all such cases the only remedy of persons thus employed is against such personal representatives individually; and such employment does not create any obligation against the estate, even though the representatives could properly have paid for the services in question out of the funds of the estate in their hands." 21 Am. Jur. 505, § 236.

We held in Farley v. Davis, 10 Wn. (2d) 62, 116 P. (2d) 263, that, under the statute (Rem. Rev. Stat., § 1526) which provides that an executor shall be allowed all necessary expenses in the care, management, and settlement of the estate, it was proper for an executor to employ a real estate agent to collect the rentals on the property of the estate.

It was proper for respondent administratrix to enter into Lan agreement authorizing a broker to find a purchaser for the apartment house property. The commission of four hundred dollars paid by her to the broker was properly allowed as an item of expense incident to the sale of the real property.

[8] Appellants may not invoke the statute (Rem Rev. Stat., § 5825 [P.P.C. § 577-3]) which declares that an agreement authorizing a broker to sell real estate for compensation or a commission shall be void unless such agreement be in writing and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized.

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While an oral agreement for a broker's commission made by an owner of the property or by one (administratrix in case at bar) having authority to sell is within the statute of frauds (Rem. Rev. Stat., § 5825) requiring an agreement employing a broker to sell real estate to be in writing, appellants withdrew their objection to allowance of the broker's commission. Counsel for appellants stated to the court that the broker employed by the administratrix should not be paid a commission; that

". . . a real estate man can't collect commissions unless he has it in writing when you come down to it. THE COURT: Are you insisting on that Mr. Nelson? MR. NELSON: In this case I am not insisting."

[9, 10] Appellants next contend that the delinquent taxes against the Jefferson county real property, at the time of decedent's death, constituted a charge against the assets of the estate and should not have been deducted from sale price of the Jefferson county property but should have been deducted from respondent's personal property share of the estate as an indebtedness of the estate.

Appellants correctly state the rule that the indebtedness of an estate must be first paid out of the personal property belonging to the estate. The delinquent taxes against the real property in Jefferson county did not constitute an indebtedness of the estate, and no claim therefor could be filed against the estate. The owner was not personally liable for the taxes assessed against his real property; those taxes were an obligation in the nature of a lien in favor of the state and county on the land, and the statutory method of enforcing same as a lien is exclusive.

Taxes assessed against real estate are not a debt or personal liability of the owner of the property. In Clizer v. Krauss, 57 Wash. 26, 106 Pac. 145, we expressly held that the owner is not personally liable for taxes assessed against his real property, and that the statutory method of enforcing the same as a lien is exclusive. We said:

"There appears to be no statutory method for the enforcement of the collection of taxes upon real property other than by foreclosing the lien thereon in the manner provided by

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the general revenue laws. This court has heretofore recognized the general rule that when the statute provides an ample and specific method of enforcing collection of taxes, such method is exclusive. Pierce County v. Merrill, 19 Wash. 175, 52 Pac. 854; 27 Am. & Eng. Ency. Law (2d ed.), 783; 1 Cooley, Taxation (3d ed.), 17. We think it clear that, under our system of taxation of real property, there is no personal liability against the owner for taxes charged against such property. The word `assessments' in the contract evidently means local assessments, and it was decided in the early case of Seattle v. Yesler, 1 Wash. Ter. 572, that such assessments were not a personal charge against the owner of the property, even though the legislature had attempted to make them such. Asberry v. Roanoke, 91 Va. 562, 22 S. E. 360, 42 L. R. A. 636; Hamilton, Special Assessments, § 668."

[11] Finally, appellants contend that the inheritance tax imposed against their share of the estate should be $771.17 instead of $1,004.50, as their share of the estate amounted to $7,711.73 and not $10,030, on which they are required to pay inheritance tax.

Under Rem. Supp. 1943, § 11202 [P.P.C. § 974-21], the niece and nephews are within the classification "class C." Any amount passing to class C up to and including the first ten thousand dollars is taxed at ten per cent. On any amount in excess of ten thousand dollars up to and including twenty-five thousand dollars, fifteen per cent.

The inheritance tax division of this state advised counsel for respondent August 29, 1945, that