# State Ex Rel. Brown v. Long

> Washington Supreme Court · February 14, 1935 · 180 Wash. 602

URL: https://www.frixlaw.com/law-library/cases/3995074

## Case

- **Full name:** The State of Washington, on the Relation of Sadie R. Brown Et Al., Plaintiff, v. William G. Long, as Judge of the Superior Court for King County, Respondent
- **Court:** Washington Supreme Court
- **Decided:** February 14, 1935
- **Citations:** 180 Wash. 602; 41 P.2d 396; 1935 Wash. LEXIS 489
- **Precedential status:** Published
- **Opinion:** Dissent by Beals
- **Judges:** Mitchell, Millard, Main, Steinert, Geraghty, Blake, Tolman, Holcomb, Beals
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Beals, J.
(dissenting) — Rem. Rev. Stat., § 1472 [P. C. § 9928], quoted in the majority opinion, confers upon the superior court some extraordinary powers in connection with proceedings for the discovery of property belonging to an estate which is being administered under direction of the court. The property of estates which are within the administrative jurisdiction of the superior court is held in
custodia legis
pending administration.
Rem. Rev. Stat., §§ 1589, 1590 [P. C. §§ 9931, 9932], read as follows:
*609
‘ * § 1589. It is the intention of this act that the courts mentioned shall have full and ample power and authority to administer and settle all estates of decedents, minors, insane and mentally incompetent persons in this act mentioned. If the provisions of this [act] with reference to the administration and settlement of such estates should in any cases and under any circumstances be inapplicable or insufficient or doubtful, the court shall nevertheless have full power' and authority to proceed with such administration and settlement in any manner and way which to the court seems right and proper, all to the end that such estates may be by the court administered upon and settled.
“§1590. In exercising any of the jurisdiction or powers by this act given or intended to be given, the court is authorized to make, issue and cause to be filed or served, any and all manner and kinds of orders, judgments, citations, notices, summons, and other writs and processes not inconsistent with the provisions of this act, which may be considered proper or necessary in the exercise of such jurisdiction.”
These sections confer upon the court very broad powers in connection with the collection and preservation of the assets of an estate. It is not only the right but the duty of the court to assume jurisdiction over the property of an estate as soon as possible, and by the least expensive means bring all the property within judicial custody.
In my opinion, the superior court was well within its authority in making the order that it announced that it would enter, although jurisdiction to make such an order is derived rather from the court’s genéral powers than from § 1472, above referred to. While it is true that the superior court, in the course of the administration of an estate, cannot summarily try the title to real or personal property, this court has held that, when issues are regularly made up on a petition to strike property from an inventory, the matter can
*610
be tried in the course of the probate administration, and the title to the property determined.
In re Sloan’s Estate,
50 Wash. 86 , 96 Pac. 684 , 17 L. R. A. (N. S.) 960;
Sloan v. West,
63 Wash. 623 , 116 Pac. 272 .
If an issue raised on a petition to strike property from an inventory can be tried in the course of administration, it would seem that an issue made up on petition of the administrator and citation issued thereon to the proper party to bring property within the inventory, could also be so determined. This does not deprive any party of the right to a jury trial, as a jury can be summoned to determine questions of fact in the probate proceeding as well as in any other cause.
If, then, the court can direct the initiation of a proceeding to try the title to property as between an estate and one claiming ownership, certainly, the court, in order to enable it to proceed accurately and promptly, should have authority in an appropriate case to order the person having personal property in his possession claimed by the administrator to exhibit the same to the court, in order that the court may readily be advised as to whether or not its officer, the administrator, should be directed to proceed further in an attempt to obtain an adjudication of ownership. If the property can not conveniently be brought before the court, then the court or its representative should be permitted to view and examine the property; all this in aid of its broad jurisdiction in connection with property which is, or ought to be, in
custodia legis.
In my opinion, there is here presented no question concerning the inviolability of the home, as the superior court stated that the property could be taken without the home if relators did not wish to admit representatives of the court to their dwelling.
While, of course, an administrator may institute an
*611
action in replevin, he, as an officer of the court and proceeding under the court’s directions, should, before being required to institute such an action, with attendant delay and expense, have the aid of the court in enabling him to determine, as near as may be, whether or not such an action should, in fact, be instituted.
The administrator is not personally interested in the matter. He is simply acting as an arm of the judicial authority. On the questions here presented, it seems to me that the same procedure should be followed as would apply in receiverships or in bankruptcy proceedings in the United States district court.
Conceding that the title to real or personal property cannot be tried without issues regularly made up, and conceding, for the purposes of argument, that the court could not direct relators to admit anyone into their home, I am still of the opinion that the trial court, in proceeding as it did, was well within its rights, and that relators’ application for a writ of prohibition should be denied.
No question is here presented as to the making of any order by the court to cover any expense necessarily to be incurred by relators in taking the property out of their home to some place where it would be subject to examination.
In 2 Woerner’s Law of Administration (3d ed.j 1026, § 325, the matter of summary proceedings to recover assets is discussed. The principle is laid down that
“The proceeding in such case is held to be plenary, the object being to perpetuate the evidence against the party charged, to be used upon any action to be brought thereon.”
The laws of the different jurisdictions are discussed, and the different rules stated.
*612
The supreme court of Wisconsin, in the case of
Meyer v. Garthwaite,
92 Wis. 571 , 66 N. W. 704 , held that the lack of jurisdiction of the county court was sufficient reason for a court of equity entertaining a suit for the recovery of possession of assets of estates in process of administration. The particular powers of a court of equity are considered in connection with such a matter, and the case is of interest here, as, of course, the superior court of this state, whether sitting as a law court, a probate court, or in equity, has all the equitable powers formerly vested alone in the chancellor.
In the notes following the case of
Humbarger v. Humbarger
( 72 Kan. 412 , 83 Pac. 1095 ), 115 Am. St. 204, the annotator, at page 211, states that, under statutes concerning the discovery of concealed assets of an estate, the proceeding partakes of a suit in chancery, and is in the nature of a bill for discovery and relief. Under the title, “Scope and Object of Proceeding, ’ ’ on page 211 and the following page, various eases are discussed; it being stated in the text that
“One of the objects of such statutes is to enable the administrator to secure information as to property which he is required to inventory or appraise, although the present situation of the property is such that it would be impracticable to order its delivery to the administrator.”
In this connection, it would seem that the most important, step which could be taken in connection with such examination would be the production of the property in court, so that the same could be examined and identified. It seems to me clear that a court of equity is vested with such power touching property which it may be the court’s duty to take into its possession.
In
In re Leonard’s Estate,
113 Misc. Rep. 205 , 185 N. Y. Supp. 243 , the court, after a hearing, entered an
*613
order directing either the delivery of certain property to the administrator of an estate or that the property be submitted to the administrator for examination so that she could determine its value. The order included the right on the part of the administrator to have the property appraised by persons competent to judge of its value.
The proposed order now under review is entirely personal in its nature, and effective only against the person to whom the same is to be directed. If, in obeying the order, the home be voluntarily opened to strangers, that result will follow the voluntary choice of the home owner, is a mere incident, and is not the necessary or legal effect of the order. If the property be exhibited to the court’s representatives while in place in the home, that will be the result of the exercise by the home owner of his own volition.
It is inconceivable to me that a court of equity is so powerless that it cannot order the production in court of an article of personal property, such as a watch or a piece of jewelry, in order that the same may be examined with the view to determining whether or not an administrator of an estate should be directed to institute proceedings for the trial of title to such property. That a witness present before the court in response to due process can say, “Yes, I have a watch, or a diamond; it is in my pocket, or at my office, or in my bureau drawer at home,” and that the court is so powerless as to be unable to enforce the production in court of the article in question, presents, as I see it, a situation never contemplated by our laws governing judicial procedure.
I accordingly dissent from the conclusion reached by the majority.
Tolman and Holcomb, JJ., concur with Beals, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3995074. Public record. Not legal advice.