
    [No. 4013.
    Decided September 16, 1902.]
    
    George E. Filley, Respondent, v. John Miller Murphy, Appellant.
    
    JURISDICTION-PETITION PILED IN PROBATE-RIGHT TO TREAT AS CIVIL PROCEEDING.
    Where a citation to a former administrator has been issued in probate, and he appears and demurs to the petition upon which it is based, on the ground that it raises an issue as to the title and right of possession of property, the demurrer should be overruled, inasmuch as the court has jurisdiction under the code procedure to treat the petition as in the nature of a complaint in a civil proceeding, and to settle the issues thereunder by proper trial.
    SAME-RIGHT TO JURY TRIAL.
    Where the pleadings in a case filed in probate raise the issue as to the right of possession of real and personal property, a jury trial is demandable, under Bal. Code, § 4967, which provides that an issue of fact in an action for the recovery of specific real or personal property shall be tried by a jury, unless a jury be waived.
    ESTOPPEL-ADMINISTRATOR’S INDIVIDUAL PROPERTY INCLUDED IN INVENTORY.
    The fact that an administrator, by mistake or in ignorance of legal rights, included his own property in an inventory of the estate would not estop him from subsequently asserting his ownership.
    Appeal from Superior Court, Thurston County. — Hon. Oliver Y. Lire, Judge.
    Reversed.
    
      George C. Israel, for appellant.
    
      J. W. Robinson and W. I. Agnew, for respondent.
   The opinion of the court was delivered by

Hadley, J.

This is an appeal from a final order and judgment of the court upon a citation issued against appellant. The record shows that upon the petition of certain heirs at law of Eliza J. Murphy, deceased, the respondent, George E. Eilley, was appointed administrator of the estate of said deceased to succeed the appellant. Appellant had theretofore been the acting and qualified administrator, but, owing to the withdrawal of one of his sureties from his bond as administrator, and the failure of appellant to file a new or additional bond within the statutory time, a vacancy occurred, which was filled as aforesaid. After the appointment of respondent, Eilley, he demanded of appellant that he turn over to him all books of account, papers, credits, moneys, and personal property belonging to said estate relating to the Washington Standard newspaper and job printing office, and also demanded possession of what is known as the “opera house,” together with all the property belonging to said estate used in connection with said opera house on Fourth street in Olympia, Washington, and all moneys which had come into appellant’s hands as the party in possession of said opera house since October 26, 1896. The demand was made in writing, and to the demand appellant made written answer, in substance as follows: That the said opera house was then, and always had been, in his possession, not as administrator of said estate, but that said building was erected upon real estate one-half of which was his separate property, and that one-half of the expense of the erection of the building was paid by him from his separate funds; that the other half of said property belonged to the community consisting of himself and the deceased, who was his wife; that his possession and occupancy was that of a tenant in common with said estate, and that he had made report to the court of such possession, and was ready and willing to account at any time for one-half of the net earnings of the opera house since his removal as administrator ; that said estate had not then, and never had, any interest in the Washington Standard printing plant and paper, or in any of the personal property connected therewith, the same having been his separate property, and being then owned by himself and sons as partners. Other property was mentioned in the said demand and answer, but no controversy exists in reference thereto, and the same need not be mentioned here. Upon receipt by respondent, Eilley, of the aforesaid written answer of appellant, said Eilley, as administrator, applied to the court for a citation requiring appellant to appear before the court and give a full account under'oath of all property belonging to said estate in his possession, and that he be required to turn over the same to said administrator. Thereupon a citation was issued. The petition upon which the citation was issued contained as exhibits, and as a part thereof, copies of the aforesaid written demand and answer thereto, and appellant, appearing on the return day of the citation, demurred to the petition, and moved the court to dismiss the same, and quash the citation, for the alleged reason that it is apparent from the face of the petition and exhibits therein set forth that the court has no jurisdiction in this proceeding of the subject matter or of the appellant for the purpose of trying title or right of possession to said property. The demurrer was overruled. Thereupon appellant answered the petition, in which he set forth the facts upon which he bases his claim of separate ownership in the newspaper property above mentioned, and also in the oiie-half of the opera house property. The administrator, by reply, denied the material averments of appellant’s said answer, thus putting in issue the question of title and the facts upon which appellant claims the right of possession to the property demanded. The reply further alleged that appellant, when he was administrator, had caused all of said property to be inventoried as the property of said community, and that he is now estopped from claiming any portion thereof as his separate property. Upon the completion of the issues as above stated, the court announced that the issues thereby made were ready for trial. Whereupon appellant objected to the court trying the issues, for the reason that by the same the title to the property, both real and personal, must he determined upon the trial, and that the court, acting in probate, is without jurisdiction, and moved the court to transfer the same to the civil department for trial. The objection and motion were overruled. Thereupon appellant, in writing, demanded a jury trial of the said issues of separate ownership and right of possession, which was also denied. The court thereupon proceeded to try the issues involved without a jury, and thereafter entered judgment to the effect that the appellant is estopped to now assert a claim of ownership in any portion of said property as against the demand of his successor, and that he shall turn over to said administrator said opera house property and the undivided one-third interest in and to the Washington Standard news and job printing office, together with $243 cash, shown to have been collected from said property since Ms removal as administrator, and also all papers, title deeds, and accounts in Ms hands relating to all of said property. From said judgment this appeal was taken.

It is assigned as error that the court overruled the appellant’s demurrer to the petition for citation. This assignment is based upon the theory that the petition showed upon its face that the title and right of possession to certain property were involved, and that the court sitting in a probate proceeding could not hear it. If the demurrer had been interposed to the petition before the issuance of the citation, the question would' then have been presented whether, under the facts stated, relief by way of citation could be had; but, in any event, we think the court might have proceeded to settle issues under the petition for trial. In this state we have no probate court, properly speaking, as distinguished from the court that entertains jurisdiction of other matters. The court of general jurisdiction also hears and determines probate matters. Matters pertaining to probate are referred to what is called “probate procedure,” as distinguished from what is denominated “civil” or “criminal procedure.” But when the court, sitting in a probate proceeding, discovers in a petition the statement of facts which forms the basis of a controversy, we see no reason why it may not settle the issues thereunder when an appearance has been made thereto, and then proceed to try it in a proper manner, as any other- civil cause. The court may require the proceeding to be separately docketed, if, when the issues are formed, it appears to be such as should be thus docketed. Whether a citation should have issued on the strength of this petition or not, it is nevertheless true that appellant responded to the citation, and appeared generally by demurrer to the petition, and asked its dismissal simply on the ground that the court could not hear it as a probate proceeding. We think it was not necessary to sustain the demurrer and dismiss the proceeding on that ground. But under our liberal practice as to the form of actions the petition could be treated as in the nature of a complaint. The issues could be framed thereunder, and the cause tried without requiring another statement of the same facts under some other form or name. If it developed that it was not properly a probate proceeding, it would not be treated as such. We think the court did not err in overruling the demurrer and in refusing to dismiss the petition.

It is assigned as error that the court refused to grant appellant a jury trial of the issues made by the pleadings. It is manifest that the averments and denials found in the pleadings squarely raise the issue as to the ownership of both real and personal property, and incidentally the right of possession to the same property is also involved. Section 4967, Bal. Code, provides as follows:

“An issue of fact, in an action for the recovery of money only, or of specific real or personal property, shall be tried by a jury, unless a jury is waived, as provided by law, or a reference ordered, as provided by statute relating to referees.”

Prom the above statute there seems to be no escape from the position that in a proceeding for the recovery of specific real or personal property the issues of fact shall be tried by a jury. In re Gorkow’s Estate, 28 Wash. 65 (68 Pac. 174), it was sought to recover specific personal property by a proceeding filed in the probate case pending for the settlement of the estate. We held that the issue must be tried by a jury. It is true the estate made no claim to the fund there sought, and the controversy was wholly between outside parties as to the right of possession to a portion of a certain legacy, but we do not see that any distinction should be made in the application of the statutory principle when an estate itself happens to be one of the claimants for possession. In re Alfstad’s Estate, 27 Wash. 175 (67 Pac. 593), this court held that the court in a probate proceeding to settle the accounts of the administrator and distribute the estate had not jurisdiction to determine the claim of the administrator to one-half of the estate as a partner of the deceased. The court, in its judgment in the case at bar, says it has inquired into the facts “incidentally for the purpose of determining the right of possession, and not for the purpose of determining the title.” Under the statute above quoted it seems that the right of possession is the very thing to be tried by a jury, and we do not see, under the issues, how the questions of title and right of possession are to be separated. We understand it to have been the theory of the trial court that this should not be treated as an action or proceeding to recover specific property, but rather as a proceeding to require appellant, as the former administrator, to discharge a duty as such by way of turning over certain property of the estate. The issue is made, however, that it is not the property of the estate, and it never was. The court held the appellant estopped in this proceeding to claim ownership and right of possession as against his successor on the ground that the property was once included in an inventory, and it seems to have been the court’s view that appellant must now yield possession, and may then institute an action of his own to recover it back, in which the issues here involved may be tried. We do not think it follows that appellant is estopped merely because the property may once have been included in an inventory. It is quite possible for property to be erroneously included in an inventory by one acting under pure mistake of facts or in ignorance of legal rights. Such conditions in no way change the fact of the real ownership, and incidentally do not affect the right of possession attached to such ownership. It would seem unnecessary to require a present yielding of possession to that which is now squarely in issue before the court to be immediately followed by some other proceeding to recover it bach under the same issues now tendered.

The authorities cited by respondent on the subject of estoppel do not seem to deal with an administrator who claims ownership in the disputed property himself, the actual possession of which was not changed by the administration; but rather with cases where the property originally came into the administrator’s hands as estate property, and to which he asserted no prior ownership. Bigelow on Estoppel (5th ed.), page 554, is cited by respondent. In the discussion of cited cases the author observes:

“The court remarked that it might be that a trustee would not be estopped from setting up his own title by the acceptance of a trust in ignorance of his title, or through mistake, when he had done no act rvhich it would be prejudicial to the beneficiaries for him to gainsay. And so perhaps a trustee, notified of an adverse claim, would not be required to surrender the assets until that claim was settled. But these principles did not touch the point in the present case. The administrator did not pretend to have any right to the cotton, or that anybody else was claiming it. The case was an open and undisguised attempt by a trustee to avail himself of his trust to make a personal profit out of an implied defect in the title to the property which had come into his hands. It was to the credit of the law, the court strongly observed, that it did not tolerate such a thing.” '

Thus, it appears the principle is recognized that a trustee is not estopped from setting up his own title by the acceptance of a trust in ignorance of his own title or through mistake. We think appellant is entitled to have the issues of fact here involved determined by a jury.

The case is therefore reversed, and the cause remanded, with instructions to grant a jury trial.

Keavis, O. J., and Fullerton, Anders, White, Dunbar and Mount, JJ.., concur.  