dence. This evidence indicates in a very, § 1566. As a general proposition of law this general way his work in connection with the is not seriously controverted by respondents; two estates, and also to the payment to pe- but they argue that the question of appeltitioner and other residuary legatees of the lant's compensation was not so involved in sums coming to them under the will. Upon the issues arising upon the final settlement as this hearing, the court vacated that portion to render the decree final upon that question of the decree allowing appellant's compensa- as against them. They seem to rely upon the tion as executor, but made no order fixing his allegations in the petition to vacate the decompensation nor of distribution. There- cree: (1) That the petitioner had no notice after the petitioner and another residuary of the filing of the report or of the hearing legatee under the will petitioned the court thereon; and (2) that the petitioner had no to fix the compensation of appellant as execu- notice of the fee claimed by appellant or tor at $703.08, and direct the distribution allowed to him until after the decree was of the balance of the $2,500 theretofore al- rendered. As to the first, it means no more lowed to and retained by him to the residuary than that she did not know of the time of the legatees under the will. To this petition hearing, in view of the conceded fact that appellant made substantially the same answer legal notice of the hearing was given. and defense as to the original petition to vacate the decree. These defenses being deemed insufficient by the court, without receiving further evidence, it made an order fixing the compensation of appellant as executor at the sum of $703.08, and directing him to distribute to the residuary legatees the balance of the $2,500 theretofore allowed and retained by him. The trial court settled a statement of facts which purported to contain all of the material facts in connection with the vacating of the decree and the order of allowance and distribution made thereafter. This has enabled us to see what material facts were before the court, if any, other than appear in the petition to vacate the decree. We mention this to show that in determining the rights of the parties here we have to resort almost wholly to the facts stated in that petition. John M. Bunn has appealed from these orders, contending, in substance, that the decree of April 5, 1910, settling his final account and determining his compensation as executor, was a final adjudication upon those questions, that such decree was not subject to vacation upon the facts presented to the court by the petitioner, and that there are no facts here shown which entitle the petitioner to have that decree reviewed other than by appeal therefrom to this court.

[2] This notice made the petitioner bound to know such facts in the absence of some legal excuse which she has not shown. The mere fact that she did not actually know is not sufficient excuse of itself for not appearing or appealing from the decree. She knew all the facts long before her time for appeal expired. As to the second, while the final account did not state exactly how much was going to be claimed by appellant as his compensation, it clearly informed all persons interested that compensation was going to be claimed, and it seems apparent from the whole report and account that more than the mere statutory commission was going to be claimed in the settlement. Indeed, it is apparent from the report that the $2,500 was going to be claimed largely if not wholly as compensation by the appellant; for other costs and expenses of the estate appear therefrom to have been then practically all paid. Indeed, such proved to be the fact, for none of the $2,500 was needed for any expense save for appellant's compensation.

[3] Under our administration laws, it seems clear that the fixing of compensation of executors and administrators is a subject for determination upon the settlement of the final account. If so, the portion of the decree of settlement by which such compensation is fixed must be a final adjudication upon that as well as all other matters involved. It might well be argued that the determination of that matter by the settlement decree would be final, even though the final account was silent thereon. That exact question, however, we need not now decide. There was in any event enough in this final account to bring that question before the court for determination in connection with its settlement. This court has held that the allowing of compensation of executors or administrators in the settlement of the final account is appealable upon the theory that it is a final adjudication as to such allowance. Horton v. Barto, 17 Wash. 675, 50 Pac. 587; Wilbur v. Wilbur, 17 Wash. 683, 50 Pac. 589.

[1] A decree settling a final account of an executor or an administrator when rendered upon due statutory notice, as this decree was so rendered, has all of the force, effect, and finality of any other final judgment rendered by a superior court. This is not only evident from the very nature of the statutory notice and procedure provided for and leading up to the rendition of such a decree; but seemingly, for the purpose of removing all doubt upon the question and putting probate decrees of this nature upon the same firm basis as to their finality as all other final judgments are, our statute has since early territorial days expressly provided that: "The settlement of the account and the allowance thereof, by the court or upon appeal, shall be conclusive against all persons in [4] Counsel for respondents argue that, the any way interested in the estate * * *" allowance of the compensation in the decree excepting certain persons under disability. of settlement being more than the statutory Laws 1854. p. 297, § 182; Rem. & Bal. Code, commission, such allowance was to that ex

116 P.-54

tent without the jurisdiction of the court.
We think that, if the compensation then al-
lowed was legally excessive, its allowance
was in any event no more than error, and
was not void for want of jurisdiction. In
Miller v. Major, 67 Mo. 247, the court, having
under consideration an alleged illegal allow-
ance made to an executor in the final settle-
ment of his account by the county court, said:
"The final settlement of the executor, which
is sought to be impeached and overthrown
by this proceeding, stands upon the footing of
a final judgment, rendered by a court having
jurisdiction of the person and subject-matter
and it cannot be vacated on the mere ground
that an illegal allowance had been made in
favor of the executor. To justify its vacation,
it is not sufficient to show that the allowance
was not properly made, but it must further
be established that it was procured by fraud,
to the injury of the estate or some party
interested. [Jones v. Brinker] 20 Mo. 87;
[State ex rel. Tourville v. Roland & Lehman]
23 Mo. 95; [Mitchell v. Williams] 27 Mo. 399;
[Sullivan County v. Burgess] 37 Mo. 300;
[Picot v. Bates] 47 Mo. 390; [Lewis v. Wil-
liams] 54 Mo. 200; [Sheetz v. Kirtley] 62 Mo.

418. In the case last cited, Judge Hough in
his opinion observes: 'Any relaxation of the
rule for the purpose of meeting apparently
hard cases can only result in making our

to the effect that the allowance of the executor's compensation by the decree settling his final account is a final judgment upon that question: Branson v. Branson, 102 Mo. 613, 15 S. W. 75; Ringgold v. Stone, 20 Ark. 526; Simonds v. Creswell, 10 La. Ann. 318; Thomas v. Frederick County School, 9 Gill & J. (Md.) 115; Mount v. Slack, 45 N. J. Eq. 129, 17 Atl. 297; In re Prentice, 25 App. Div. 214, 49 N. Y. Supp. 353.

Counsel for respondents make some contention that the settlement decree was in any event not final to the extent that the superior court could not set it aside at any time prior to the final discharge of the executor. It is argued that the court until that time has jurisdiction over the estate, and that until then the decree has only the effect of an interlocutory order. This view would have some support if the decree were one other than a decree rendered upon a statutory notice, and we had no statute declaring as to its finality. Now, a probate cause is not for all purposes one single case with no final judgment therein except that which is rendered at its conclusion. There the administration of the estate which are are certain proceedings in the progress of within themselves, so far as determining the rights of parties involved therein, in a sense

independent proceedings. If this be not the correct view, then the notices provided by law for the hearings in such proceedings are to no purpose. What object would there be in giving the notice of hearing in these termination thereon was not to be final? various intermediate proceedings if the de

The Court of Appeals of New York, in the case of Matter of Accountings, Executors of Tilden, 98 N. Y. 434, 440, having under consideration the question of the final

judgments partial and confused. Ample time is given by the statute for taking appeals from the final settlement of guardians and curators, and it is better that all concerned should understand that some solemnity and binding force attaches to such settlements, and that they cannot be overhauled years afterwards, to the detriment of innocent parties, merely on account of illegal allowances. Such settlements must stand, unless tainted with fraud or reversed on appeal.'" In Mock v. Pleasants, 34 Ark. 63, 72, deal-ity of the settlement of several successive ing with a similar situation, the court said: "The complaint contains no averment that the allowances made to the administratrix upon her settlement were obtained by any misrepresentation or deception practiced upon the court. The facts, so far as anything to the contrary appears, were all before the court, and understood by it, and its decisions fairly made. Mere illegal allowances to an administrator are no grounds for impeaching or setting aside a settlement." It does not appear from these decisions that the alleged illegal allowances were for compensation; but, if such allowances in favor of the executor were in fact illegal, they would come as near raising jurisdictional questions as if allowance had been illegally made for compensation. One is as much the subject of the court's determination as the other. They both involve questions of law and fact, calling for the trial court's decision, and an erroneous decision thereon would not show want of jurisdiction.

The following cases support the holding of

accounts, said: "It appeared that upon the
various accountings before the surrogate
each subsequent account was based upon
the one preceding, and that the balance
of assets found and adjudged to be in the
hands of the executor by the prior decree
was made the foundation of the next ac-
count. It would thus appear that the va-
lidity of each previous account and decree,
being unchallenged by any objection, was
assumed and adjudged to be correct in each
succeeding accounting and judgment. The
balance appearing by the third decree was
upon the fourth accounting stated in the
account as the just and true amount of the
assets in the hands of the executors at the
date of that decree; and any of the heirs
or legatees might have controverted that
allegation if any reason existed why the
decree fixing that amount was not binding
upon him.
It follows that each successive.
decree instituted upon citations duly issued
and served upon the parties interested in the
estate whether adults or minors, and based

law then existed such a suit could not be
maintained by heirs, and that, since the
estate had not been finally closed by a de-
cree of distribution and discharge of the ad-
ministrator, the court still had jurisdiction
over the estate, notwithstanding the final
account of the administrator had been set-
tled. There is nothing in that decision in-
dicating that the court regarded the matters
adjudicated by that settlement other than
final. The second is State on Relation of
Reser v. Superior Court, 13 Wash. 25, 42
Pac. 630. In that case there was an attempt
to have this court review by certiorari an
order of the superior court setting aside a
conditional order discharging an adminis
trator upon his final accounting. This
court declined to entertain the writ, saying:
"It appearing that the administrator has
not been discharged, it follows that the
court has jurisdiction of the proceedings,
and could set aside its previous order. As
to whether there were sufficient grounds to
sustain such action would be a matter re-
viewable on appeal. Consequently, there
was no ground for the issuance of a writ
of certiorari to review the same. * *
The grounds upon which the superior court
set aside the order does not appear. This
court only held that the superior court
had jurisdiction to do so. We are not hold-
ing in this case that the superior court has
not jurisdiction to set aside a decree set-
tling a final account upon a proper showing.
Our holding here is that the superior court
in this case erroneously set aside the decree
of settlement for want of sufficient show-
ing. The third is Shufeldt v. Hughes, 55
Wash. 246, 255, 104 Pac. 253, 257, where
this court said: "The vacation of the first
decree of settlement was largely in the dis-
cretion of the court." A critical reading
of that case will show that this language
had reference to the conditions which the
trial court attached to its order vacating
the settlement decree. There does not seem
to have been any controversy as to the
court's jurisdiction to set aside the decree
or as to there being sufficient showing there
made to warrant such an order. We are
not able to see that the question we are
here concerned with was either involved or
decided in that case.

binding and conclusive upon each of such tate. The court simply held that as the persons, as to the validity of any prior decree which entered into and was made the basis of the subsequent accounting. There can be no doubt that these various decrees were binding upon all of the adult heirs and legatees who were. duly cited to appear. **" The same court in affirming the case of In re Prentice, above cited, which had been determined by the Supreme Court of that state, said that: "That the accounting may be an intermediate one, in the sense that the estate is not now finally distributed, does not affect the final character of the decree. It terminated the proceeding, and, so far as it determined any question raised upon the accounting, it is conclusive upon the parties interested and who were cited until reversed upon appeal." See In re Prentice, 160 N. Y. 568, 55 N. E. 275. The Supreme Court of Missouri in discussing a similar situation in Branson v. Branson, 102 Mo. 619, 15 S. W. 75, said: "The case was heard and judgment rendered on appeal in the circuit court at its February term, 1887, but no motion for new trial or bill of exceptions was filed at that time. At the following August term the defendants sought to have the administrators charged with commissions which had been allowed to them in the previous settlement, on the ground that they had agreed to administer the estate free from charges for their services, but the evidence was excluded. The judgment rendered by the circuit court at its February term gave to the administrators the commissions which the defendants now seek to have charged back. That judgment is final and conclusive. It settles the right of the administrators to have the commissions, so long as it remains in full force and effect. The evidence was therefore properly excluded. No timely appeal was taken from that judgment, and the judgment and proceedings in the circuit court leading to it are not before us for review. It is true the circuit court made an order for the sale of the notes, accounts, and stock, and directed the administrators to report to the next term of that court, and then made an order like that made by the probate court continuing the settlement to the next term for final approval, but this continuance had reference to the future orders which the court supposed it had a right to make and did not keep open the judgment then rendered." Rhoads' Appeal, 39 Pa. 186; Irvine's Estate, 209 Pa. 325, 58 Atl. 618; Summerlin v. Floyd, 124 Ga. 980, 53 S. E. 452; 18 Cyc. 1190.

As opposed to this doctrine, counsel for respondent rely upon three decisions of this court. The first is Hazelton v. Bogardus, 8 Wash. 102, 35 Pac. 602. That case involved an attempt of heirs to quiet title to property descending to them from an ancestor pending the administration of the es

We find, then, that we have here a decree fixing appellant's compensation which is a final adjudication upon that question. Alleged errors which occurred in the rendition of that decree were sought to be reviewed in the superior court by moving its vacation, instead of appealing therefrom. We have many times held that this cannot be done. The reasons therefor are fully stated in Sound Investment Co. v. Fairhaven Land Co., 45 Wash. 262, 88 Pac. 198, where our previous decisions are cited and reviewed. This doctrine was reaffirmed in

the late case of the State v. Tenney, 115 Arthur C. Dresbach, for appellant. Owens Pac. 1080. We are of the opinion that the & Finck and Reynolds, Ballinger & Hutson, respondents have not shown either by peti- for respondent. tion or otherwise in the superior court sufficient facts to entitle them to have the decree settling appellant's final account and allowing his compensation as executor vacated; or the adjudication thereby made reviewed in any manner except by appeal to this court. We conclude that the orders appealed from must be reversed and se aside. It is so ordered.

man went down and got the rope and placed | test, and to show the complete right of the it on the derrick. Q. Got it out of Mr. Pear- defendant to control the manner and methson's warehouse? A. Yes, sir; out of his ods of doing the work, and of employing, distoolhouse. Q. You have several charging, and paying the men. men- A. I employed the men, and I told them who would pay them and where they would get their money. Q. What did you tell them about that? A. I told them that Mr. Pearson would pay it. Q. Was that in your agreement that Mr. Pearson was to pay the men? A. Yes, sir. * Q. Suppose that there was a loss would have occurred there, who would have borne that loss? A. The general contractor, Mr. Pearson himself. * If I exceeded that contract pricethat is, if I exceeded the amount in labor of the 187, or whatever tonnage it was, at $8 a ton, if I did not go ahead and furnish the funds to complete this work-I would simply quit, and Mr. Pearson would finish, and I would receive nothing for what time I would have labored; that would be the outcome of the whole thing." Mr. Pearson denied this, and testified in substance that Mr. Norman was an independent contractor.

*

[1] The appellant argues that the court should have dismissed the action upon defendant's motion upon the openíng statement of counsel, for the reason that such statement conceded that Mr. Norman was an independent contractor and liable for the damages; and also upon defendant's motion made at the close of the evidence, for the reason that the proof showed that Mr. Norman was an independent contractor. We think the court did not err in denying these motions. While counsel for plaintiff stated in opening his case that the defendant "made an agreement with Mr. Norman that, instead of paying him $6 a day as he had paid Mr. Sandusky, that he would pay him so much per ton in accordance with the number of tons of structural iron so put up, and so Mr. Norman agreed to that," he also stated: "We will show * * that all the men were paid by Mr. Pearson, and that Mr. Norman acted as foreman, and that the contract with reference to payment was merely the manner of paying him; paying him in accordance with the amount of work he should do, instead of paying him so much per day." It is, therefore, clear that it was not admitted that Mr. Norman was an independent contractor. The contrary was claimed.

[2] It is also plain from the testimony of Mr. Norman set out above that the question of fact, whether he was an independent contractor, was very seriously disputed. Counsel for appellant cites Larson v. American Bridge Company, 40 Wash. 224, 82 Pac. 294, 111 Am. St. Rep. 904, and Miller v. Moran Bros. Co., 39 Wash. 631, 81 Pac. 1089, 1 L. R. A. (N. S.) 283, 109 Am. St. Rep. 917, to the effect that the test which determines the relation of independent contractor is the right to exercise the power of control. There was clearly enough in this case to meet that

[3] The trial court gave the following instruction: "In passing upon the question of whether he was an independent contractor, the question to be determined in this case is whether the men retained by Mr. Norman for this job were in his employ, or in the employ of the defendant. If you find from the evidence that Mr. Norman was to get so much per thousand feet of iron installed by him on the floors of this building, under the agreement between him and Mr. Pearson, but that it was provided under the agreement that the men employed to do this work should be paid by the defendant out of the money which would otherwise become due to Mr. Norman upon completion of the work, then the plaintiff in this case was an employé of the defendant, and not of Mr. Norman. In order that you may understand more clearly, I say, if you find from the evidence that Mr. Pearson said to Mr. Norman, 'You go ahead and do this work, get the men necessary for the purpose, let me know the amount of wages of those men, and I will pay it, and I will deduct it out of what is coming to you at the end of the job, under the agreement to pay you so much per thousand pounds of iron,' if you find that to be the fact from the evidence, then you would find that Mr. Norman was not an independent contractor, but a foreman for whose negligence the defendant would be responsible. I think I will submit the case to you, gentlemen, upon that one question of fact, under evidence before you. If you find under all of the evidence in this case that it was the agreement between Pearson and Norman that Mr. Norman was to get these men, but they were to be paid by Mr. Pearson out of what would be coming to Mr. Norman on the completion of his job, then, if Mr. Norman was negligent in the matter of supplying these guy ropes, Mr. Pearson was negligent, and if your verdict would be against Norman-if your verdict in any event could have been against Normanyour verdict would be against Pearson in this case. Unless you find from the evidence that it was the agreement between Norman and Pearson that Pearson was to pay the men employed by Norman in the prosecution of this work out of the money that would be due to Norman upon the completion of the work, then your verdict must be for the defendant. As I regard the case under the evidence and the law, it is necessary for you to determine that one question of fact, and your verdict will be for plaintiff or defendant as you determine it, provided a recovery is not precluded by some of the other defenses invoked."

Appellant argues that this instruction is erroneous, for the reason that it does not properly define an independent contractor.