
    [No. 3664.
    Decided August 26, 1902.]
    
      In the Matter of the Estate of James Reid Macdonald, Deceased. Mary L. Macdonald, Appellant, v. A. W. Frater, as Receiver of Merchants' National Bank of Seattle, Respondent.
    
    NON-INTERVENTION WILES-LIABILITY OF ESTATE-JUDGMENT AGAINST EXECUTRIX- — CONCLUSIVENESS.
    In an action in the federal court by the receiver of an insolvent national bank against the executrix of an estate to recover judgment upon her testator’s liability as a shareholder, judgment against the executrix was decisive of the issues as to the liability of the estate and the jurisdiction of the court, and was an enforceable judgment in probate proceedings in the state court, where it appeared that the executrix was appointed under the terms of a non-intervention will, by virtue of which she took over all the property of the estate, that she still had funds thereof in her possession, without there being any other indebtedness against' the estate, and that her testator was the owner of shares of stock in such insolvent bank upon which a valid assessment had been levied by the comptroller of the currency.
    SAME-DISCHARGE OF EXECUTRIX BY COURT- — EFFECT.
    Where an executrix derived her powers from what is known as a “non-intervention will,” and accepted -her trust and managed it in accordance with the provisions of the will and not under the statute regulating the administration of estates, the fact that she sold her testator’s partnership interest under leave of court, and that she filed a report showing there were no debts against the estate, upon which the court granted her a discharge from her trust, would not exempt her from after accruing liabilities of the estate, inasmuch as the act of the probate court in attempting to control the administration of an estate held under such a will was beyond its jurisdiction.
    
      SAME — NOTICE TO CREDITORS.
    Notice to creditors to file claims within one year is not necessary in the case of estates administered under the provisions of a non-intervention will.
    SAME-CLAIMS NOT IN EXISTENCE.
    The har of the statute upon claims against a decedent’s estate not presented within one year after notice to creditors is inapplicable to claims not in existence until after the expiration of the year specified in the notice to creditors.
    Appeal from Superior Court, King County. — Hon. William Hickman Moore, Judge.
    Affirmed.
    
      Ira, Bronson, for appellant.
    
      Presión. Oarr & Oilman, for respondent.
   The opinion of the court, was delivered by

Anders, J.

This was an application by petition to the superior court of King county, in probate, for an order upon the executrix of the will of James Reid Macdonald, deceased, to show cause why she should not be removed, and letters testamentary be issued to some other person.

The material facts, as declared by the record, are as follows: James Reid Macdonald died in San Francisco, California., on November 1, 1893. By his will he bequeathed the sum of $1,000 to each of his four minor children, and devised and bequeathed the residue of his property to his wife, Mary Ij. Macdonald, whom he appointed executrix of said will. This will authorized the executrix to settle and distribute the estate without, the intervention of the court and without giving bonds, which the testator was empowered to do by § 955, 2 Hill’s Code. Such wills are commonly designated in this state as “non-intervention wills.” The will was duly admitted to probate, and on November 27, 1893, letters testamentary were, issued to said executrix. Thereafter she caused to be published a notice to tlie creditors of said James Reid Macdonald to present tlieir claims to lier at a place designated in King county within one year from the date therein specified. It is stated in appellant’s brief that the. only creditors of the said James Reid Macdonald, of “any practical significance,” known to her, consisted of the trade creditors of the firm of Fischer & Macdonald, of Seattle, and that these creditors were paid and their claims wiped out Avithin a short time by Fischer Bros., the successors of Fischer & Macdonald. Ro claims Aver© presented for allowance to the executrix Avithin the year designated in the above mentioned notice to creditors. And in thei early part of July, 1896, the said Mary L. Macdonald filed a petition for her discharge as executrix and for distribution of said estate; and on August 17, 1896, and after notice of the application had been regularly published and given in the manner and for the time required by la,AV in ordinary cases of administration of estates of decedents, the superior court entered an order piArporting to discharge said execiitrix, and to authorize the distribution of the estate, which Hie appellant asserts. Avas accordingly done. At the time of his death Mr. Macdonald Avas the OAvner of thirteen shares of the capital stock of the Merchants’ Rational Bank of Seattle, AAdiich came into the possession of appellant, Mary L. Macdonald, as part of -the assets •of his estate. After his death the bank became insolvent, and a receiver of its assets Avas appointed by tliei comptroller of the currency, and an assessment Avas leAded upon the shareholders of that bank for $150,000; being seventy-five dollars upon each and every share of the capital stock of the said bank. This assessment Avas made in April, 1896, and on April 16, 1896, the then receiver notified Mrs. Macdonald, by registered letter,.which Avas. received and receipted for by her on the same day, that the1 comp-trailer of the currency had levied an assessment of $75 per share upon the capital stock of said hank, payable at the office of the receiver on or before May 16, 1896, and requested her to pay the assessment on thirteen shares standing in her name, in accordance with the1 notice, or suit would be commenced to enforce payment. The assessment was not paid in accordance with the request or demand of the receiver, or at all; and on August 3, 1896, a suit was instituted in the circuit court, of the United States for the district of Washington, Northern Division, to enforce its collection, in which action judgment was rendered on January 21, 1898, in favor of the complainant and against the. defendant, Mary L. Macdonald, as executrix of the last will and testament of J ames Reid Macdonald, deceased, for $1,094.30, and costs incurred in the action. This judgment was never appealed from and has not been paid. No. execution has been issued upon it, hut a certified transcript of the judgment ivas filed in the superior court of King county, in the matter of the estate of Macdonald, pursuant to § 990, 2 Hill’s Cbde. The executrix, Mrs. Macdonald, failed and refused to pay the judgment; and this proceeding was instituted by the receiver of the bank, under § 955, 2 Hill’s Code, to. subject the assets alleged to be in the hands of Mrs. Macdonald, as executrix, to the payment, thereof, by removing her from her trust, and causing letters testamentary to be issued and such other proceedings to be had as are required by law in the administration of estates. In his petition the receiver alleged, in an appropriate manner, the. insolvency of the Merchants’ National Bank; his own appointment as receiver by the comptroller of the currency ; the assessment of the capital stock of the bank 'by said comptroller, and the amount of such assessment; the death of James Reid Macdonald while owning thirteen shares of said stock; the1 appointment of Mary L. Mac donald as executrix of the last will and testament of James Reid Macdonald; and averred that said will provided, among other things, that the estate of said testator should he managed and settled in the manner provided in said will, and without, the intervention of the court, except to •admit the will to probate in the manner required by law, and that the estate had been so managed and controlled by said executrix since the probate of the will and the qualification of the said executrix in accordance with terms thereof. The petition also sets out all the proceedings had and taken in the action in the circuit court, above mentioned, including the judgment therein, its non-payment, and the filing of a certified transcript thereof in the superior court. In short, the petition alleges facts sufficient to entitle the petitioner to’ the relief demanded, under § 955, supra, provided that section is applicable to this ease.

In her answer to the petition, Mrs. Macdonald denies that she is now, or since August II, 1896, has been, the executrix of the last will and testament of James Reid Macdonald, deceased; that, after the probate of said will and the qualification of said executrix, the said estate has been managed find controlled without the intervention of the above entitled court, but alleges that estate was administered under the express direction and control of the said court; that she, as said executrix, appeared in said action in said circuit court of the United States and filed an answer therein, hut alleges that she appeared personally and specially, and filed an answer in that capacity; that she has moved from the state of Washington and taken the greater portion, if not all,' of the property of said estate, as alleged in the petition herein, and alleges that she has at all times maintained her home in King county, Washington, and lives and resides therein, except during the winter months, which she spends with her young children in the state of California; that she has failed, neglected, or refused to execute faithfully the trust imposed upon her as such executrix, or to promote the interest of the parties taking under said will, or that the petitioner, as a creditor of said estate, has been or is about to be damaged by the refusal of said executrix faithfully to discharge her trust, or that she has wasted or mismanaged the property of said estate, or has committed a fraud upon said estate, or has appropriated the property thereof to her own use and benefit, regardless of the interest or claims of the petitioner as a creditor of said estate, or at all, and denies that she has ever neglected to- perform as such executrix any act which she was then required to do. And it is affirmatively alleged in the answer that- the estate has long since been finally settled and closed, upon due notice to all persons therein concerned. For a further answer and affirmative defense, Mrs. Macdonald set forth in detail the proceedings, in the superior court- of King county in the matter of her husband’s estate-; from the probate of the will up to and including the order of the conrt purporting to discharge- her as executrix, and distributing the estate to her and her minor children on August 17, 1896. This affirmative defense is-, in effect, that the will of Macdonald, deceased, was duly admitted to probate; and that Mrs. Macdonald was appointed executrix thereof; that notice to- creditors to. present their claims within one year from the first publication thereof Avas published for thei time required by law in the administration of estates, and due proof thereof duly made; that Mrs Macdonald, as executrix of the will of her husband, applied to the probate court for leave to sell the interest of her deceased husband in the firm of Fischer and Macdonaid, which application was granted; that she reported to the court, that no> claims had been presented against said estate, and that all debts had been paid; and that she applied for and obtained her discharge from her trust, and was awarded the entire estate, of which, however, she was to hold as guardian the sum of $1,000 for each of said four minor children. But it does not appear and it is not claimed that she ever filed an inventory of the property of the estate, or that the estate was ever appraised, or* its value charged to her as executrix, or that she ever made any report of her doings to the court, or exhibited any account for settlement or allowance.

At the trial in the superior court the records of the circuit court in the suit, against Mrs. Macdonald as executrix, including the judgment therein, were introduced in evidence; and also the transcript of said judgment. And upon the pleadings, evidence; and stipulation of the parties filed in the cause, the court found, among other things, that the will of the deceased was what is. commonly known as a “non-intervention will,” authorizing the executrix therein named to manage; control, and settle the estate of the said deceased without, the intervention of any court whatsoever; that she was appointed on, her own petition to have said will probated, and herself appointed executrix, and that the decree authorized her to act without bonds, under the authority of the will; and that she duly qualified as executrix of the will, and took charge of said estate. The court further found that subsequent proceedings were had by her, which are shown by the record, and which have already been stated, and need not he repeated. Thei court alsoi found that the said Mary L. Macdonald at all times since the rendition of the judgment in the circuit court had in her possession funds belonging to the. said estate sufficient to pay said judgment, and that said judgment is the only claim against the said estate, and that no- reasonable cause exists- why it should not be paid. And from the facts as found the court concluded that the proceeding’s of the court in this matter subsequent to- the issuance of letters testamentary to-, and including the order of discharg’0 of the executrix, had no binding force upon the creditors- of the said estate; and was, as to- them, null and void; that Mary L. Macdonald has not been legal- / ly discharged, and is still acting as executrix of the will of J ames Reid Macdonald, deceased, under’ and by virtue cf the authority thereby conferred, and that she has failed to execute faithfully the trust which she assumed under said will; and that the petitioner has been damaged by her acts in refusing to recognize and pay the said judgment. A decree was thereupon entered requiring Mrs. Macdonald, as executrix of the said last will and testament of J ames Reid Macdonald, deceased, to- pay to the petitioner, within thirty days, the sum of $1,094.30; being the amount cf the judgment rendered by the said circuit court, together with the costs in the action therein. And it was further adjudged and decreed that upon failure of the said Mary L. Macdonald to pay the said judgment, interest and costs within the time limited, shei be removed and discharged as such executrix, and, upon proper application by the petitioner, letters of administration be issued to another person, and thei said estate be administered upon under the supervision of the superior court. Costs were awarded to- the petitioner. From this judgment Mrs. Macdonald has appealed to this court, and she claims that the lower court erred in finding (1) that the proceedingsinthecircuitcourt were regular, and that the judgment rendered therein is a binding judgment upon the said Mary L. Macdonald as such executrix; (2) that the said Mary L. Macdonald at all times since the rendition of said judgment had in her possession funds belonging to said estate sufficient to pay said judgment, and that the said judgment is the only claim no-w against the said estate, and that no reasonable cause exists wby the said judgment should not be paid.

The first claim of error seems to' be based upon the assumption that the judgment of the federal court in the controversy between these same parties is simply an adjudication that at the death of the deceased he was the owner of certain shares of stock, upon which a valid assessment had been levied by the comptroller of thei currency, and that the question whether or not such obligation has been perfected or reduced to' an enforceable claim against the personal representative of the deceased, and whether it had been, presented in time, and whether she has funds with which to pay, are each and all of them vital questions in the cause1, upon which the circuit court did not pass. Several authorities are cited by .the learned counsel for the appellant as to the powers and duties of the federal courts in actions against the personal representatives of deceased persons, the one principally relied on being Wickham v. Hull, 60 Fed. 326. That was a bill filed, by the receiver of a national bank against the executors of the last will of A. H. Hull, deceased, to enforce collection of an assessment upon certain shares of capital stock of the bank, belonging to -.he estate. And it was there held that the estate of a deceased owner of national bank stock is liable, under § 5152 of the Revised Statutes of the United States, to an assessment levied against his executors in consequence of the failure of the bank after his death; that the federal court is not deprived of jurisdiction of a suit against the executors of an estate hy the fact that the estate is in the possession of a probate court for the purpose of administration; and that the federal court has jnrisdiction to- determine whether a liability exists, but cannot issue execution to- enforce such liability. In that case the defendants pleaded the limitation prescribed by the Iowa statute governing the settlement of estates, and the court refused to pass upon the question whether the particular provision of the state statute pleaded debarred the complainant from sharing in the estate, the court being of the -- opinion that, inasmuch as the claim established by it must, be presented for allowance in the probate proceedings, it ivas the better practice to- remit that question to the probate court. But, in that case the court did determine and establish the claim of the receiver against the exec: utors of the will of the deceased, and, in so doing, necessarily passed upon such questions as the liability of the executors for the assessment and jurisdiction of the court in thei premises, as those questions were directly involved in the case.

In the action in the federal circuit court between the receiver and the appellant here, it was claimed by the appellant that she was not liable, in a representative capacity •or otherwise, for the1 assessment upon the bank stock in question, for the reason that she had been discharged from her trust as executrix by a court of competent jurisdiction after notice to; all parties, concerned; and the same claim is made in this- proceeding. The¡ circuit court, in the above mentioned action, found, as shown by the recitals in its decree, among other things, that Mary L. Macdonald (appellant here) has been ever since November 27, 1893, the duly appointed, acting, and qualified executrix of the last will of James Beid Macdonald, deceased; that said deceased was at the time of his death the owner and in the possession of property in King county, Washington, and that all of said property, in an amount largely in excess of complainant’s claim therein, and liable to the payment of the? debts of the deceased, came into- the hands of the said Mary L. Macdonald as such executrix; that, there were no debts- remaining unpaid; and that there, still remained in her hands property undistributed, and liable for the; payment of thei debts o-f thei deceased, sufficient to pay the claim of the complainant therein. «That judgment, as we have; seen, was no-t, appealed from, and has never been set aside or modified, and, as between the parties thereto; is decisive of all questions there in issue and determined by the court. See Sayward v. Thayer, 9 Wash. 22 (36 Pac. 966), and Isensee v. Austin, 15 Wash. 352 (46 Pac. 394). It must he borne in mind that the federal court- did not undertake; or even pretend, to- take possession of the; estate o-f the deceased, or to- administer upon it, and hence the authorities cited by appellant to- the effect that one court will not seize property lawfully in the possession of another are not applicable to thei case in hand. One of thei questions which the said circuit, court was called upon to determine was whether the defendant, Mrs. Macdonald, was in fact the executrix of the will of Macdonald, deceased, — she having denied tha,t she was such executrix, and pleaded her discharge by t-hei superior court, — and that involved the further question whether shei derived her power as executrix from the will itself, or from the statutes regulating the administration of estates-. And the court adjudged that shei was such executrix, and entered its decree against her accordingly; and we have no- doubt, that the judgment, is valid, and that it, is payable like any other debt chargeable to- the estate. That case is reported in 85 Fed. 836, under the title of Baker v. Beach; the complainant, Baker, being at that time the. receiver of the Merchants National Bank. In the course of the opinion the court said:

“As the law makes no, provision for discharging an executrix whoi assumes toi carry out the provisions of a will in settling up, the estate of a deceased person without other authority than the will itself, exemption, from liability incident to ownership of any property which belonged to the deceased in his lifetime cannot be claimed until the title to, all personal property of the deceased has been transferred, and until the heirs have obtained possession of all real property. A decree, will be entered according to the prayer of the bill.”

But it is earnestly insisted on behalf of the appellant that there was no evidence whatever toi sustain the finding that appellant at the time of the rendition of the judgment by the circuit court, or at any time since, had in her possession funds belonging to said estate sufficient to, pay said judgment, or that said judgment is, the only claim against said estate. As to this contention, we think counsel is in error. In the first place, the judgment of the federal court established the fact that the appellant, at, that time had funds in her possession, undistributed, sufficient to pay this claim of the receiver, and that it was the only debt of the estate; and, in the second place, it appears by the verified statement of the appellant, which was presented to the superior* court, that the deceased left a large amount of property, which it is conceded came into her hands as administratrix of the estate; that there were practically no debts, except debts of the firm of Fischer & Macdonald, which she admits and declares in her brief were paid soon after her appointment, as administratrix; and that! she disposed of the deceased’s interest in said firm for $25,000. It also, appears from the record that at the time of her alleged discharge she had sufficient funds, with which to pay the legacies specified in the will amounting to, $4,000, and that she procured her appointment as guardian of the estates of her children, and as such guardian, received the legacies named in the will. There was no evidence adduced showing that any portion of the estate; had been lost c¡r disposed of in any way, and upon this state of facts it would seem clearly to appeal" that the finding in question was fairly warranted by the evidence. It is further claimed by the appellant, that the trial court erred in its conclusions of law above mentioned, and it is especially insisted that the record of the proceedings of the probate court show that the estate was managed and settled under the order and direction of the court, and not under and by virtue of the authority of the will. The will, upon its face, shows that it is, and was intended to be a “non-intervention” will; and the record shows that Mrs. Macdonald accepted the trust, qualified as executrix, took possession cf the estate of the deceased, and managed it in accordance with the provisions of the will. True’, she applied to the court for leave to sell the interest of the deceased in the firm of Pischer & Macdonald, and to- be discharged from her trust, but it does not follow from these facts that the estat-e; was either managed or settled under the supervision and control of the court. This court has frequently and uniformly held that thei probate court is without po-wei’, except such as is especially conferred upon it by the statute, to control the administration o-f e-states under wills of the character of that now under consideration. See Newport v. Newport, 5 Wash. 114 (31 Pac. 428); Smith v. Smith, 15 Wash. 239 (46 Pac. 249); State ex rel. Cox v. Superior Court, 21 Wash. 575 (59 Pac. 483). It follows from what we have already said that the purported discharge of appellant as executrix was without force or effect as to; the respondent, and that the court, was right in so concluding.

As to the point made by the appellant that the respondent’s claim was not presented within one year from the first publication of the notice to creditors, and was therefore barred by the statute, it is sufficient to observe: Rirst, that the limitation invoked by appellant is not applicable to this case (Moore v. Kirkman, 19 Wash. 605, 54 Pac. 24) and, second, that the claim of the respondent did not exist until after the expiration of the year specified in the notice to creditors, and hence, could not he affected hy the notice, or barred because: not, presented to the executrix at, that time. State ex rel. Patterson v. Tittman, 134 Mo. 162 (35 S. W. 579); Finney v. State, 9 Mo. 227; Tenny v. Lasley, 80 Mo. 664; Oswald v. Pillsbury, 61 Minn. 520 (63 N. W. 1072).

We have discovered no, error in the record, and the judgment is therefore affirmed.

Reavis, O. J., and Mount and Dunbak, J7J\, concur.

Ruhlekton, J\, dissents.  