No. 682.
December 2, 1892, Decided
Appeal from Superior Court, Thurston County.
This was an action of ejectment for the recovery of certain
real estate, brought in the court below by Moses H. Scott,
plaintiff, against John McNeal and Augustine McNeal,
defendants. The complaint was in the ordinary form. The
answer of defendants admitted the title to the land in
question in plaintiff Scott up to the year 1888, but claimed
that they had purchased this land from one Ward, who had
bought it by virtue of certain probate proceedings had in
the probate court for Thurston county, in the year 1888. The
judgment of the lower court and the supreme court were based
on the validity of certain proceedings taken and had in such
probate court.
The petition for letters of administration, notice and
service, and also decree appointing administrator, are as
follows:
In the Probate Court in and for the County of Thurston,
Territory of Washington.
IN THE MATTER OF THE ESTATE OF MOSES H. SCOTT, DECEASED.
To the Honorable M. A. Root, Judge of the above Court:
Mary Scott, your petitioner, respectfully shows:
1. That one Moses H. Scott, heretofore a resident of the
above named county and territory, mysteriously disappeared
some time during the month of March, A. D. 1881, and more
than seven years ago.
2. That careful inquiry made by relatives and friends of
said Moses H. Scott at different times since his said
disappearance has failed to give any trace or information of
his whereabouts, or any evidence that he is still living.
3. That your petitioner verily believes that said Moses H.
Scott is dead, and has been dead from the time of his said
disappearance.
4. That said Moses H. Scott was never married, and left no
last will or testament yet heard of.
5. That said Moses H. Scott left real estate in his own
right, in Thurston county, Territory of Washington, of the
value of six hundred dollars, more or less.
6. That the heirs of said Moses H. Scott, to the best of
your petitioner's knowledge and belief, are: Samuel Scott,
aged about 18 years; Annie Rebecca Scott, aged about 16
years, and Fannie Elizabeth Scott, aged about 14 years, the
three living children of a deceased brother of said Moses H.
Scott.
7. That your petitioner is a judgment creditor of said Moses
H. Scott, and holds an unsatisfied judgment against him.
8. That R. H. Milroy, of Olympia, Washington Territory, is a
suitable and proper person to act as administrator of the
estate of said Moses H. Scott, deceased.
Wherefore, your petitioner prays that letters of
administration upon the estate of Moses H. Scott, deceased,
be issued to said R. H. Milroy, and your petitioner will
ever pray, etc. MARY SCOTT.
STATE OF CALIFORNIA, COUNTY OF SANTA CLARA.
Mary Scott, being by me first duly sworn, upon her oath
deposes and says: That she is the petitioner above named;
that she has read the foregoing petition and knows the
contents thereof, and believes the same to be true.
As witness my hand and seal of MARY SCOTT.
Subscribed and sworn to before me this 2d day of April,
1888. H. F. DUSEY, Notary Public.
PROBATE NOTICE.
In the Probate Court of Thurston County, W. T.
Mary Scott having filed in this court a petition praying for
the appointment of R. H. Milroy as administrator of the
estate of Moses H. Scott, notice is hereby given that the
hearing and consideration of said petition has been fixed
for Friday, April 20, 1888, at 10 o'clock A. M., at the
office of the undersigned.
April 7, 1888. M. A. ROOT, Probate Judge.
TERRITORY OF WASHINGTON, COUNTY OF THURSTON.
I, V. A. Milroy, being first duly sworn, on oath say that I
am a citizen of the Territory of Washington, above the age
of 21 years, not interested in the estate of Moses H. Scott;
that I posted three copies of the within notice in three of
the public places of the county of Thurston, W. T., as by
law required, on the 7th day of April, 1888.
V. A. MILROY.
Subscribed and sworn to before me this 20th day of April,
1888. GEORGE M. SAVAGE,
$(NOTARIAL SEAL.$) Notary Public.
In the Probate Court of Thurston County.
IN THE MATTER OF THE ESTATE OF MOSES H. SCOTT.
The petition of Mary Scott for the appointment of R. H.
Milroy as administrator of the above named estate coming on
this day to be heard, and due proof having been made that
due notice of said hearing had been posted in three public
places as required by law, at least ten days before this
day; George M. Savage and Francis Henry giving evidence
before the court, and it duly appearing that said Moses H.
Scott disappeared over seven years ago, and that since said
time nothing has been heard or known of him by his relatives
and acquaintances, and that said relatives and acquaintances
believe him to be dead, and that his surroundings when last
seen (about eight years ago) and the circumstances of that
time and immediately and shortly afterwards were such as to
give his relatives and acquaintances the belief that he was
murdered at about that time; and it appearing that he has
estate in this county:
Now, therefore, the court find that the said Moses H. Scott
is dead to all legal intents and purposes, having died on or
about March 25, 1888; and no objections having been filed or
made to the said petition of Mary Scott and the guardian ad
litem of the minor heirs herein consenting, it is ordered
that said R. H. Milroy be appointed administrator of the
said estate, and that letters of guardianship issue to him
upon his filing a good and sufficient bond in the sum of one
thousand dollars. M. A. ROOT,
Dated April 20, 1888. Probate Judge.
At the trial the plaintiff's counsel objected to the
introduction of such records in evidence, because the
petition did not state sufficient facts to vest the probate
court with jurisdiction; further, that the notice and
service and decree were insufficient to warrant any of the
subsequent proceedings of the court in ordering a sale of
the land in question. This evidence being admitted,
plaintiff excepted.
It also appeared from the evidence that Samuel C. Ward
purchased this land at administrator's sale, by order of the
probate court in the matter of Moses H. Scott's estate, and
that Ward conveyed the same to defendants, who had made
valuable improvements thereon. This evidence was admitted
over plaintiff's objection.The court, in reply to remarks
made by defendant's counsel with reference to the
sufficiency of the testimony in their behalf, used the
following language:
"I am inclined to agree with you without argument. This is
the view I am taking of the case. The probate court having
passed upon the sufficiency of the petition to give it
jurisdiction, and acting upon it in good faith, of course,
the finding that the party was dead under the presumption
that his own acts had caused to arise, he had remained away
a sufficient time that the probate court said the law does
presume he was dead, I therefore find as a matter of fact
that he is dead."
Mr. Scott was examined as a witness in his own behalf. He
testified that when he departed from Olympia he left his
business in the hands of T. F. McElroy, as his agent. Scott
was also asked the question, by his attorney, whether or not
he was ever indebted to one Mary Scott, but he was not
permitted to answer, because his answer might tend to
contradict an allegation of the petition for letters of
administration in that regard. The court directed the jury
to return a verdict for defendants, which having been done,
plaintiff moved for a new trial. Motion was overruled and
judgment rendered on the verdict, and exceptions were duly
taken.
Court: Judgment affirmed.
Syllabus: EJECTMENT--PROBATE
JURISDICTION--FINDINGS--ABSENCE.
Under the laws of Washington Territory, Code of 1881,
probate courts were vested with jurisdiction over the
estates of deceased persons, and when the powers of such
courts have been invoked by a petition setting forth the
jurisdictional facts, among others, absence of a party for
more than seven years, and that there is no evidence that he
is still living, the court is warranted in finding that he
is dead, and in ordering administration upon his estate.
In such a case, the supposed deceased person, after his
return to this state, cannot, as against an innocent
purchaser or his grantees, maintain an action of ejectment
to recover property sold under a decree of the probate
court.
Counsel: N. S. Porter (Byron Millett, of counsel), for
appellant:
First, That the administration on the estate of appellant,
he being alive, is absolutely void, and that all the
pretended proceedings undertaking to dispose of his property
to respondents' grantor were a nullity. 1 Woerner's Am. Law
of Administration (1st ed.), § 209, 210, 211; 1 Freeman on
Judgments (4th ed.), § 120, 319b; 2 Black on Judgments (1st
ed.), § 640; Freeman on Void Judicial Sales (3d ed.), § 4;
Mutual Benefit Ins. Co. v. Tisdale, 91 U.S. 238; Rorer on
Judicial Sales (2d ed.), § 478, 485, 488; Code 1881, §
1340, 1388, 1389; Jochumsen v. Savings Bank, 3 Allen, 87;
Melia v. Simmons, 45 Wis. 334; Devlin v. Commonwealth, 101
Pa. St. 273; Thomas v. People, 107 Ill. 517; Swiggart v.
Harber, 4 Scammon (Ill.), 364; Griffith v. Frazier, 8
Cranch, 9; Thompson v. Whitman, 18 Wall. 457, 471;
D'Arusment v. Jones, 4 Lea (Tenn.), 251.
The decision in the case of Roderigas v. East River
Savings Inst., 63 N. Y. 460, was by a divided court, and was
based on the phraseology of the statute of that state
regulating the jurisdiction of surrogate courts. This
decision, however, is very much weakened by the decision in
the subsequent case between the same parties, reported in 76
N. Y. 316. In 15 American Law Register, page 212, Judge
Redfield severely criticizes the opinion of the New York
court of appeals in the Roderigas case.
Second, The probate court, as it existed under the laws of
Washington Territory, is of special and limited powers and
jurisdiction. The petition, notice and service gave the
court no jurisdiction over the res. There was no finding of
fact as to Scott's death. The statement that "The court find
that the said Moses H. Scott is dead to all legal intents
and purposes, having died on or about March 25, 1888," is a
mere legal conclusion and not a finding of fact.
Root & Mitchell, for respondents:
The probate proceedings referred to in this suit were in
accordance with law, and consequently are binding upon all
persons interested therein, and upon all property acted
upon; and that respondents having acted in good faith are
protected. 1 Woerner's Am. Law of Administration (1st ed.),
§ 210, 211, and notes; 1 Freeman on Judgments (4th ed.), §
319; Miller v. Beates, 3 S. & R. 490; Roderigas v. East
River Savings Inst., 63 N. Y. 460.
The finding of the fact of death is conclusive. 46 N. J.
Law, 229; 1 Woerner's Am. Law of Adm., § 211, 212;
Roderigas v. East River Sav. Inst., supra.
The jurisdiction of the probate court in this matter
depended upon facts which it was required to ascertain in
passing upon the petition for letters, and its decision as
to those facts is binding until reversed on appeal or in a
direct proceeding. 1 Black on Judgments, § 274; Otis v. The
Rio Grande, 1 Woods, 279; 1 Herman, Estoppel, § 378, and
cases cited; Grignon's Lessee v. Astor, 2 How. 319; City of
Delphi v. Startzman, 104 Ind. 346; Dequindre v. Williams, 31
Ind. 444; Bonsall v. Isett, 14 Iowa, 309; Roderigas v. East
River Savings Inst., supra. If the jurisdiction over the
subject matter appears on the face of the proceedings in
which a sale is made, errors or mistakes cannot be examined
collaterally. Rorer on Judicial Sales (2d ed.), § 480, note
1; Thompson v. Tolmie, 2 Pet. 157; United States v.
Arredondo, 6 Pet. 708; Wight v. Wallbaum, 39 Ill. 555;
Iverson v. Loberg, 26 Ill. 181; Cockey v. Cole, 28 Md. 286.
Proof before the probate court of seven years' absence
raised the presumption of Scott's death. That presumption,
not being controverted, legally and conclusively established
the fact of death in that inquiry. 1 Greenleaf, Ev., § 33,
34; Miller v. Beates, 3 S. & R. 490; Whiting v. Nicholl, 46
Ill. 230.
Judge(s) SCOTT, J. ANDERS, C. J., and DUNBAR, HOYT and
STILES, JJ., concur.