State ex rel. Stratton v. Tallman

65 P. 545, 25 Wash. 295, 1901 Wash. LEXIS 391

• Court: Washington Supreme Court
• Decided: June 18, 1901
• Docket: No. 3947
• Status: Published

Opinion

The opinion of the court was delivered hy

Reavis, C. J.

Original application for mandamus. In September, 1900, John Sullivan, a resident of King County, died, leaving a large estate, both real and personal, in that county. Letters of administration were issued hy the superior court thereafter. On the 8th of March, 1901, following, Marie Carrau, of Seattle, filed a written paper, purporting to he a nuncupative will of deceased, praying that such will might he admitted to probate. Citation was issued, delivered to the sheriff, and immediately returned, stating there were found no heirs or next of kin of deceased. Thereafter, upon the same day, proof was made and an order entered admitting the will to probate. Afterwards a petition for an order of distribution of tbe estate under tbe will was filed, and tbe bearing of sucb petition was set for tbe lOtb of May, 1901. Before tbe petition for distribution was beard, tbe attorney general, on bebalf of tbe state, filed' a motion in tbe probate court, praying for tbe vacation of tbe order admitting tbe will to probate and to set aside all tbe proceedings leading up to tbe probate of tbe will, upon tbe grounds that tbe court acquired no jurisdiction to bear any evidence in support of tbe will because no citation was issued as required by law, because tbe citation was issued on tbe day it bears date, and at tbe time tbe will was presented to tbe court and immediately returned by tbe sheriff without making any effort to find any of tbe heirs of deceased or any .person interested in tbe estate, and because deceased never made or attempted to publish and declare tbe will. Thereupon the court declined to consider or decide tbe motion, on tbe ground that tbe state could not properly appear in tbe proceeding. Tbe attorney general applied here for a mandate directing tbe probate court to consider and determine tbe motion.

Tbe extraordinary writ will not be issued if relator has a plain, speedy, and adequate remedy at law. Belator urges that under subd. 8, of § 4620, Bal. Code, tbe state is interested in testing tbe validity of tbe will, because, in tbe event of tbe establishment of intestacy and upon tbe failure of heirs, tbe estate escheats to tbe state. Tbe effect of tbe order admitting a will to probate, either written or nuncupative, is declared in § 6108, Bal. Code, “as effectual in all cases as the original would be if produced and proven,” and sucb effect by § 6112 is declared binding upon all persons if its validity shall not be contested within one year after tbe probate or rejection of tbe will. Assuming that tbe state may have such contingent interest in the estate as to have the real truth of the existence and validity of the will determined, it appears there is a plain procedure, which- is speedy and adequate, pointed out in § 6110, Bal. Code, by which issues may properly be made up and tried and determined, respecting all questions affecting the regularity of the execution or of the validity of the will, and the superior court, entertaining such a suit, may fully protect such rights in the estate by such stay of proceedings in the procedure in probate as may be necessary or effective.

• The conclusion, therefore, is that the appropriate procedure is designated in § 6110-, supra, and there is no necessity shown for a mandate, from -this court. Writ .denied.

Fullerton, Anders, Dunbar, Mount, White and Hadley, JJ., concur.