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(Mass.) 436; Deep River National Bank's | ly and customarily be written. Discussing Appeal, 73 Conn. 341, 47 Atl. 675; Weston the question the court said:

v. Myers, 33 Ill. 424; Streff v. Colteaux, 64 Ill. App. 179; Chapman v. Inhabitants of Limerick, 56 Me. 390; Dreutzer v. Smith, 56 Wis. 292, 14 N. W. 465; Hamilton v. State, 103 Ind. 96, 2 N. E. 299, 53 Am. Rep. 491; Delaware Ins. Co. v. Pennsylvania Ins. Co., 126 Ga. 380, 55 S. E. 330, 7 Ann. Cas. 1134. Our own cases seem to have adopted this broader rule. Tingley v. Bellingham Bay Boom Co., 5 Wash. 644, 32 Pac. 737, 33 Pac. 1055; Eureka Sandstone Co. v. Long, 11 Wash. 161, 39 Pac. 446; Anderson v. Wallace Lumber & Mfg. Co., 30 Wash. 147, 70 Pac. 247; Degginger v. Martin, 48 Wash. 1, 92 Pac. 674.

In the first of the cases cited from this court the memorandum in question was an agreement by which the party sought to be charged had undertaken to perform certain named services in driving logs. The memorandum was in the handwriting of the agent of the principal, and was not signed at the usual place of signature, nor did the promisor's name appear thereon other than in the opening clause of the agreement, which read as follows:

"It is objected that the defendant here is the party to be charged, and that the contract was not signed by defendant, or any one on its behalf. Assuming, for the present, that authority to sign was vested in the Secretary, the signature seems to fall directly within the rule stated in Tingley v. Bellingham Bay Boom Co., the memorandum was not signed by the defend5 Wash. 644, 32 Pac. 737 [33 Pac. 1055]. There ant corporation, but the instrument was in the handwriting of the agent.

that the name of defendant appears in some appropriate way to have been put in intentionally, to authenticate the memorandum. Conceding this, it is shown here that the agent wrote the memorandum, and wrote the name of defendant as vendee in addition to, and below, the printed name of defendant; and these facts are aided by the letter to President Black, signed by the agent. There can be no reasonable doubt that the vendor was bound by the memorandum, which purported to be a mutual agreement. The suggestion that it is in effect an option given by plaintiffs to defendant is not substantial. It purports to be an express agreement to convey the timber land, was so accepted by the defendant, and was so construed by the parties thereto; and a deed was thereafter drafted in pursuance thereof, by direction of defendant's officers, and executed by plaintiff, but defendant refused to receive the same."

"But it is contended that it must be shown

In Degginger v. Martin it was held that a contract of a broker to sell the land of his principal was sufficiently signed by the broker where the name under which he did busi

"This agreement, entered into this 20th day of August, 1890, by and between the Bellingham Bay Boom Company, of Fairhaven, Washington, party of the first part, and J. H. Moore and others, respectively, whose names are hereto subscribed, parties of the second part, witness-ness was typewritten at the usual place of eth," etc.

This was held a sufficient signing to take the case out of the statute which provided that a contract or promise which was not to be performed within one year from the making thereof was void unless such contract or promise, or some note or memorandum thereof, be in writing and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized. After mentioning certain acts thought to show a ratification of the agreement by the promisor the court said:

"It is a well-established rule of law that a contract is signed, within the meaning of the statute, whether the name of the party to be charged appears at the bottom, top, middle, or side of the paper. Drury v. Young, 58 Md. 546 [42 Am. Rep. 343]; Clason v. Bailey, 14 Johns. [N. Y.] 487; Barry v. Coombe, 1 Pet. 640 [7 L. Ed. 295]; 1 Reed, St. Frauds, § 384."

The case of Eureka Sandstone Co. v. Long, quotes from and cites the foregoing case with approval.

Anderson v. Wallace Lumber & Mfg. Co. is similar in its facts to the case of Tingley v. Bellingham Bay Boom Co. There the ven

signature, followed by his written initials. Conceding the statute to be analogous, these cases, it must be confessed, support the judgment of the trial court.

But with reference to the statute in question, the court, in so far as it has heretofore had occasion to consider it, has shown an inclination to give it a more strict construction, or, perhaps, better, a construction more in accordance with the literal import of

its terms.

In the case of American Multigraph Sales Co. v. Jones, 58 Wash. 619, 109 Pac. 108, we held such a contract absolute as to subsequent creditors of the vendee because the memorandum was not filed with the auditor within ten days after the delivery of the Property, notwithstanding it was filed prior to the time the subsequent creditors became such, citing and quoting from with approvai the case of Chilberg v. Smith, 174 Fed. 805, 98 C. C. A. 513, where the Circuit Court of Appeals, in a case arising under the particular statute, announced the same rule. To the same effect is the case of Worley v.

Metropolitan Motor Car Co., 72 Wash. 245,

within 10 days after the property is taken over, as it could not be antedated and made to answer the purpose of a chattel mortgage. In this case it was said:

dor, in an agreement to sell real property, 130 Pac. 108, where it was held that the brought an action against the vendee to memorandum of the sale must be executed compel a specific performance of the contract. The vendee defended on the ground that the contract was within the statute of frauds, because not signed by it. The only place its name appeared in the instrument was in the body thereof, where according to the purport of the agreement it would usual

ority between creditors, we think this case must "Whatever the general rule may be as to pribe decided by reference to the statute, and that alone. The provision that all conditional sales

of personal property, where the property is placed in the possession of the vendee, shall be absolute is equivalent to the expression shall be void'-that is, of no legal force or effect as to purchasers, incumbrancers, and subsequent creditors in good faith-unless the requirements of the statute are followed."

In the case of First Nat. Bank v. Wilcox, 72 Wash. 473, 130 Pac. 756, 131 Pac. 203, it was held that a conditional sale contract was absolute as to subsequent creditors, where the memorandum of the contract was not filed in the county of the residence of the vendee as such residence was stated in its articles of incorporation, although filed in the county where the property was delivered, and where the vendee had its mills and manufacturing plant.

When the purposes of the different statutes are considered, there would seem to be a valid reason for construing the one more literally than the other. The statute of frauds, as its name indicates, was intended to prevent fraud through the instrumentality of mistake and perjury. It was intended to prevent one party to a contract from suffering loss through the parol testimony of a perjured or mistaken witness, who testifies to a bargain different from the one actually made. Since, therefore, the purposes of the statute are accomplished by the production of a writing which clearly evidences the bargain, the courts, in order that the one party may have the benefit of the bargain, have refused to allow the other party to escape by the plea of want of signature to the writ, ing, where his name appears at some place thereon, and his conduct shows that he intended to bind himself according to the terms of the writing. But it must be conceded, we think, that some of these cases go to great lengths, and all of them clearly beyond the literal meaning of the statute. Perhaps their real justification is found in the fact that the courts thereby prevent the writing from operating upon the one party a fraud as great as the statute intended to prevent the want of a writing operating upon the other. Again, the statute directly affects the parties to the contract only; the public interest in the statute lies in the fact that its tendency is towards the promotion of good morals.

It

The statute in question has a wider effect. It has the elements of a recording act. will be remembered that prior to its enactment unrecorded conditional bills of sale of personal property were valid in this state, not only as between the vendor and vendee, but as to incumbrancers and purchasers without notice, and subsequent bona fide creditors of the vendee. It was thus possible for the vendee of such property to commit frauds by disposing of the property to innocent third persons and by using it as a basis upon which to obtain credit. While the statute therefore tends in the same degree to prevent frauds between vendors and vendees through the instrumentality of perjury, as

does the statute of frauds, its principal, if not primary, purpose is to prevent the vendor and vendee of such property from committing frauds upon third persons. It would seem then, since it affects persons other than the parties to the agreement, the courts are justified in giving it a more strict construction than it gives to the statute of frauds; that it is proper to require that the instrument when filed shall show on its face a compliance with the statute; that the instrument shall be complete in itself, thus doing away with the necessity of inquiring into extrinsic matters to determine its validity.

Tested by the more strict rule, we are clear that this memorandum was not signed by the vendor within the meaning of the statute. The instrument would appear no different on its face had it been prepared wholly by the vendee without the knowledge or consent of the vendor. Whether it was signed by the vendor or not was thus subject to dispute even as between the parties, and the question could only be determined by an examination into their acts and conduct. The rights of third persons should not be left to depend upon such circumstances; as to them the instrument should be fair upon its face. As this instrument is not thus fair, we hold the sale absolute as to subsequent creditors in good faith.

The trial court found the value of the

boiler at the time it was retaken by the respondent to be $200. The appellant questions the correctness of this finding, contending that the evidence shows that it was of considerable greater value. The evidence as to its value is conflicting, but our examination of it does not convince us that it supports the appellant's claim, or preponderates against the finding of the trial court.

The judgment appealed from is reversed and the cause remanded, with instructions to allow a recovery in favor of the appellant, plaintiff below, in the sum of $200.

CROW, C. J., and PARKER and MOUNT, JJ., concur.

(82 Wash. 226).

In re MARTIN'S ESTATE. POLK v. MARTIN. (No. 11932.) (Supreme Court of Washington. Nov. 14, 1914.) 1. APPEAL AND ERROR (§ 93*) - ORDERS AP

PEALABLE.

Rem. & Bal. Code, § 1450, requires the administrator to return into court, within one all decedent's property. Section 1458 declares month after appointment, a true inventory of that, whenever any property not included in the inventory shall come to the knowledge or possession of the administrator, he shall cause it to be inventoried and appraised as soon as practicable, and the making of such inventory may be enforced. Section 1461 authorizes complaint by an heir, etc., that property belonging to the subd. 6, authorizes an appeal from any order estate has not been inventoried. Section 1716, affecting a substantial right in a civil action which in effect determines the proceeding. Held,

that an appeal may be taken from an order dis- an inventory of the property of the estate. missing a petition to compel an administrator to On December 13, 1913, the daughter, conceivinclude in the inventory omitted property, the order in effect dismissing the proceeding, and ing that the administrator had not made so the appeal does not permit a review of ques- and returned a true, correc and full intions touching due administration by piecemeal, ventory of the property of the estate, filed for, if the matter could not be reviewed until in the superior court a petition praying that the final accounting, the administration would be subject to great delays.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 643-647; Dec. Dig. § 93.*] 2. APPEARANCE (§ 24*)-WAIVER OF OBJECTIONS BY CITATION"-OFFICE OF. As a citation in a probate proceeding is only a means of giving to the party notice of the pendency of adversary proceedings, and service is waived by voluntary appearance, an administrator, against whom a proceeding was instituted to compel him to include omitted property, cannot attack the sufficiency of the citation, where he demurred generally to the petition, without saving his special appearance; such demurrer being a general appearance waiving irregularities.

[Ed. Note. For other cases, see Appearance, Cent. Dig. §§ 118-143; Dec. Dig. § 24.*

For other definitions, see Words and Phrases, First and Second Series, Citation.]

RIOR COURTS JURISDICTION.

a citation be issued to the administrator requiring him to appear on a day certain and show cause why certain property alleged to have been omitted from the inventory should not be included therein. The petition, after reciting the death of Alma L. Martin, the appointment of William G. Martin as the administrator of her estate, the filing by the administrator of an inventory purporting to be a full and correct inventory of the property of the estate, continued as follows:

"That the said inventory so made and returned into court by the said administrator is not a true, full, and correct inventory of the property belonging to said estate, in that the said inventory includes only an undivided community interest of one-half in and to the real property described in said inventory; further in that the 3. COURTS (2002*)-WASHINGTON-SUPE- hold goods and effects of said deceased; further said inventory does not contain all of the houseThe superior courts which have jurisdic-in that certain other personal property has not been included therein, to wit, an automobile tion of probate matters do not, in exercising of the value of about $400, and certain shares their probate jurisdiction, lose their power as of stock in the Bremerton-Charleston Light & courts of general jurisdiction, and may, when Fuel Company, a corporation, of the value, as title to property claimed to have belonged to a decedent is in controversy, exercise such power 000; further in that the said inventory does your petitioner is informed and believes, of $2,and determine the controversy. sion of the said William G. Martin at the time not include moneys on hand and in the possesof the death of said decedent-all of which propcommunity property of the said Alma L. Martin, deceased, and the said William G. Martin, her husband. That your petitioner has heretofore made due demand upon the said administrator to include, in an inventory of the property of said estate, the property above described, to comply with which said demand the said administrator has failed, neglected, and refused."

[Ed. Note.-For other cases, see Courts, Cent. Dig. 479; Dec. Dig. § 2002.*]

4. EXECUTORS AND ADMINISTRATORS (§ 65*)—erty so omitted from the said inventory was the INVENTORY-PETITION TO REQUIRE THE INCLUSION OF PROPERTY-SUFFICIENCY.

A petition averring that the inventory made by the administrator was not true, and that certain described property belonging to the deceased was not included, which also averred that it was filed by an heir of the deceased, is sufficient to state a cause of action to require the administrator to include the property.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 314; Dec. Dig. &

65.*]

Department 2. Appeal from Superior Court, Kitsap County; Walter M. French, Judge.

In the matter of the estate of Alma L. Martin, deceased. Petition by Mabel Polk against William G. Martin, as administrator. From an order sustaining a demurrer to the petition and dismissing the proceedings, the petitioner appeals. Order reversed and remanded, with directions.

Hamlin & Meier, of Seattle, for appellant. F. W. Moore, of Bremerton, for respondent.

On the filing of the petition the court directed that a citation issue as prayed for therein, directing the administrator to appear on December 27, 1913. A citation was issued as directed, service of which was made on the administrator. On the day appointed the administrator appeared specially and objected to the jurisdiction of the tion, on the ground that the citation was court to proceed to a hearing upon the petinot under the seal of the court, that no copy of the petition was attached to the citation, and because the citation failed to show that the petitioner had an interest in the estate. The objections were overruled by the court, whereupon the administrator demurred generally to the petition. This demurrer the court sustained, and entered an order dismissing the proceedings. The petitioner, feeling aggrieved by the order of the court, prosecutes this appeal.

FULLERTON, J. Alma L. Martin died intestate in Kitsap county on April 21, 1913, leaving an estate therein, consisting of real and personal property. She left as her heirs at law her husband, William G. Martin, and [1] The respondent moves to dismiss the a daughter by a former marriage, Mabel appeal, basing his motion on the ground that Polk. Letters of administration on the es- the order is not reviewable as an independtate were granted to the husband, Martin, ent order, but must be reviewed, if reviewed on May 10, 1913, who in due time thereafter at all, on an appeal from the order settling returned and filed in the estate proceedings the final account of the administrator with *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

the estate and directing the estate's distribu- | tion.

which allows an appeal from an order affecting a substantial right in a civil action or proceeding, which in effect determines the action or proceeding and prevents a final judgment therein. Our conclusion is, therefore, that the motion to dismiss must be denied.

The right of appeal from orders in proBut we think the order appealable as bate which affect a substantial right seems an independent order. By section 1450 of not heretofore to have been questioned in the Code (Rem. & Bal.), it is made the duty this court. In Clancy v. McElroy, 30 Wash. of the administrator to make and return in- 567, 70 Pac. 1095, an appeal was entertainto court, within one month after his appoint- ed from an order refusing to remove an ment, a true inventory of all the property be- executor of an estate, and in Re Belt's Eslonging to the decedent, that shall come to tate, 29 Wash. 535, 70 Pac. 74, 92 Am. St. his possession or knowledge. By section 1458 Rep. 916, an appeal was entertained from an it is provided that, whenever any property order refusing to compel an administratrix shall come to the knowledge or possession of to inventory certain property claimed by a the administrator not included in the inven- creditor to be property of the estate the pretory, he shall cause the same to be invento- cise question presented in the case at bar. ried and appraised as soon as practicable aft- In neither of these cases was there a motion er the discovery thereof, and the making of to dismiss, but, had there been doubt in the such inventory may be enforced after notice mind of the court as to the appealability of by attachment, to which may be added the the orders, the question would have been sugrevocation of the letters. By section 1461 gested by the court itself. Statutory authorcomplaint to the court that property belong-ity for such appeals is found in subdivision ing to the estate has not been inventoried 6 of section 1716 of the Code (Rem. & Bal.), and appraised may be made by an heir, creditor, legatee, or any one interested in the estate, and it is made the duty of the court, on such complaint being made, to cite the person holding such property to appear and be examined touching the same. These sections of the statute clearly contemplate that [2] It is next insisted that the trial court all questions concerning the ownership or was without jurisdiction to hear the conright of possession of property, claimed by a troversy upon its merits, and that this court person having an interest in the estate to is likewise without such jurisdiction, for the be the property thereof, shall be tried and reasons stated in the motion to quash the determined during the course of the admin- citation. But a citation in a probate proistration. And it must follow as of course, ceeding is only a means of giving a party we think, that an appeal from such orders notice of the pendency of adversary proas the court may make in the premises shall ceedings, and service thereof is waived by be taken within the time limited by statute a voluntary appearance of such party. While for taking appeals. Any other rule would the respondent in this instance did at first prolong the administration of the estate, and appear specially and object to the jurisdicwould not, as the respondent supposes, result tion of the court because of defects in the in the bringing of questions touching the due citation, he also, when his special appearadministration of the estate before the ap-ance was overruled, demurred generally to pellate court by piecemeal. If, for example, this court should conclude with the respondent that the order here appealed from was reviewable only on an appeal from an order settling the final account, and an appeal should be taken from that order, it is plain that, if the court should then determine that the order is erroneous, it would pass upon no other question, but would send the case back, with instructions to proceed with the hearing, and, if property was discovered not administered upon, to proceed further with the administration of the estate. In other words, the court would be compelled to hold that the final settlement of the estate was had prematurely, and that other questions, dependent upon the final settlement, were not before the court for review. Moreover, it is not only the policy of the statute, but to the interest of heirs, legatees, and creditors of an estate, that the property belonging thereto be brought at once within the jurisdiction of the court, as the person thereafter having it in possession must give bond for its safe-keeping, thus lessening the possibility of its loss to the persons to whom it

Calhoun V.

the petition without saving his special ap-
pearance. This was a general appearance,
and waived any right thereafter to claim
Want of jurisdiction over his person or want
of regularity in the citation.
Nelson, 47 Wash. 617, 92 Pac. 448; Spring-
field Shingle Co. v. Edgecomb Mill Co., 52
Wash. 620, 101 Pac. 233, 35 L. R. A. (N. S.)
258; Bellingham v. Linck, 53 Wash. 208,
101 Pac. 843; Columbia & Puget Sound R.
Co. v. Moss, 53 Wash. 512, 102 Pac. 439.

[3] The grounds upon which the trial judge rested his decision on the merits of the controversy do not appear in the record, but it can be gathered from the briefs of counsel that he thought the court, in the exercise of its jurisdiction over matters of probate, was without power to inquire into the title to property, the ownership of which was in dispute. There are cases from this court which support this view, the most notable of which is, perhaps, the case of In re Alfstad's Estate, 27 Wash. 175, 67 Pac. 593. But the doctrine of this case has been disapproved in the later cases of Filley v.

bate matters into the aggregate jurisdiction of tion, to be exercised along with their other jusuperior courts as courts of general jurisdicrisdictional powers, legal and equitable, and as a part of those general powers. * When

Presbyterian Church v. McMillan, 31 Wash. | cisions. The Constitution simply throws pro643, 72 Pac. 502; In re Sall, 59 Wash. 539, 110 Pac. 32, 626, 140 Am. St. Rep. 885; In re Williamson, 75 Wash. 353, 134 Pac. 1066; and State ex rel. Keasal v. Superior Court, 76 Wash. 291, 136 Pac. 147.

The case of Filley v. Murphy is similar in its facts to the present case. There an administrator of an estate had been removed and a successor appointed. The succeeding administrator claimed that certain property in the hands of the first administrator was property of the estate, and made demand upon him for its possession. Possession was refused on the ground that the property was individual property and not property of the estate. The succeeding administrator thereupon, by petition and citation, sought to recover the possession of the property. The court, after a hearing, entered judgment granting the prayer of the petition. On appeal to this court it was urged that, because there was an adverse claim to the property, the court was without jurisdiction to determine the issue. Passing upon the question, the court, Judge Hadley delivering the opinion, used this language:

"In this state we have no probate court, prop erly 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."

In the case of State ex rel. Keasal v. Superior Court, the latest expression of opinion by the court upon the question, this language was used:

"In conferring jurisdiction upon the superior courts in probate matters, the Constitution makers did not carve out a section of the jurisdiction of the courts of this state and confer it as a limited subject upon the superior courts as probate courts of limited jurisdiction. The failure at all times to observe this fundamental fact has led to some confusion in our own de

a superior court has presented to it through a petition, in any matter of probate, any issue touching the estate, it has jurisdiction both of the parties and of the subject-matter, and it deals with them, not as a court of limited, but its powers, legal or equitable, and may even inof general, jurisdiction. It may exercise all of voke the aid of a jury to finally determine the controversy. The Constitution has no more limited its powers in such cases than in others of which jurisdiction is conferred by the same constitutional provision."

Under the rule of these cases, it is clear that a superior court, in a probate proceeding, can exercise all of the powers of a court of general jurisdiction. It has power, in such a proceeding, to determine every matter necessary to the due administration of an estate, and it is its duty to do so, when such matters are properly presented for its consideration. So in the case at bar, if there is a substantial dispute as to the ownership of the property described in the petition, it

can determine the issue in the manner such issues are usually determined. If equitable issues are presented, it may try the issues as a court of equity; if legal issues are presented, it may try the issues as a court at law, and to that end may set the cause for hearing at some convenient session, when a jury will be present for the trial of such issues.

[4] Some question is made as to the sufficiency of the allegations of the petition, but we are unable to see wherein it is faulty in this respect. It very clearly appears therefrom that an heir of the estate contends that certain described property, which the administrator has not caused to be inventoried or appraised, is property of the estate; that demand has been made upon the administrator to cause such property to be inventoried and appraised; and that the administrator has refused so to do. These facts are sufficient to constitute a ground of complaint requiring the administrator to answer.

The order is reversed, and the cause remanded, with instructions to require the administrator to answer to the petition.

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For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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