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PROBATE RECORDS AND PROCEDURE
D. K. SICKLES, Deputy County Clerk, Seattle. It was my privilege to see the proposed Probate Code for the first time on last Saturday. Since then I have read it carefully a number of times and I can find but little fault with it.
The subject assigned to me for discussion, “Probate Records and Procedure” is about covered by the proposed code. If the present law was open to discussion many things might be pointed out for correction, but the proposed code has apparently gone straight at and into the subject of settlement of estates in a modern, progressive way, as though no other code had ever existed.
The proposed code is to be particularly commended for three reasons:
1st. It shortens the time within which estates may be settled.
2nd. It removes a great deal of formality in the matter of publication and posting of notices.
3rd. It cuts down expense in the settlement of estates.
Taking the subjects as arranged in my topic and the Code in their order, we first refer to Section 2, Records.
Subdivisions 1, 2, 3, 6 and 7 are correct as they stand.
The Association of County Clerk's, for several sessions of the Legislature, has sought the enactment of legislation to reduce unnecessary recording, not as suggested by one legislator because we do not want anything to do, but because we would like to save the taxpayer the cost of bound books as well as the salary of recorders. We would strike out subdivision 4 (record of bonds) and subdivision 5, (record of claims.)
In the place of subdivision 4 we would provide for a book to con. tain a skeleton record of all bonds, civil, criminal, probate and all other bonds required to be filed in the Clerk's office; this record to show on one ruled line the number and title of cause, nature of action, amount of bond, names of principals and sureties and by whom approved.
In King County such a record in one volume would last a number of years, save many bound records and a considerable clerical work. No kind of record proves the genuineness of a signature, only makes a prima facie case, and the skeleton record can by law be given the same for and effect as a full record.
In our experience of more than ten years, we have found the books of "Claims" to be absolutely useless. Nobody except the clerk who makes the entry every looks at it. Our probate numbers have run up to over 17,000.
The attorney or interested party finds it easier to look up the files than to resort to the claims book.
Notice In the counties of the first class and probably in all counties where more than two newspapers are published, the greatest farce in procedure is the giving of notice. For instance, under our present probate law for the sale of real estate, two notices must be published and two must be posted. Under the proposed code one each of these notices is properly dispensed with. If the law could designate who are interested persons in such a proceeding, of course personal service would be much more effective and economical. Of the two notices I believe posted notices get more attention than notices pubJished. In the counties of sparse population where perhaps two papers are published, everything printed is read, and in fact, legal notices are sought by such persons as have an interest. But in Pierce County, what publicity is given to a notice affecting the estate of a former resident of the City of Tacoma if published in a newspaper at Buckley? Such publications are only useful as a formal compliance with law, and are only looked after by abstractors and attorneys examining abstracts.
The only remedy I can suggest for effective newspaper notice in legal proceedings in counties of the 1st, 2nd and 3rd class, is to require such notices to be published in a newspaper to be designated by the Judges or County Commissioners as the “official” paper, such notices to be paid for at the same rate charged for county notices.
Partition By the repeal section of the proposed Code the provisions of law relating to partition by Commissioners (Sec 1590 et sep. Remington & Ballinger Code) appear to be repealed and no definite proceeding substituted. If the proposed Code should be amended in this respect, we call attention to that part of Sec. 1,600, R. & B. Code, which requires a certified copy of the report of the Commissioners to be recorded in the office of the County Auditor of the county in which the land is located. Such record should not be required if the land is located in the county in which the estate is being probated. In fact such report would not seem to be necessary in any county if the order of the Court confirming such report sets forth fully the detail of the partition.
Recording is expensive and when no good purpose is served by the record, should be avoided.
It seems to us that Sec. 160 of the proposed code does not cover the proceedings of partition by commissioners, often now resorted to in probate proceedings unless Sec. 290, conferring special jurisdiction, is deemed sufficient. Even then the attorney might be at loss to know how to proceed without first consulting the Court.
tor to make application for the appointment of appraisers, and requires the Court to appoint appraisers. No exception is made. In this connection see Sec. 1,451, Remington and Ballinger's Code.
Frequently an estate consists solely of money or securities of a fixed value. Appraisers can not change the value and in such cases the Court has entered an order dispensing with appraisers. Such authority should be conferred in the proposed code.
Deposit of Wills Sections 1287-8 Remington-Ballinger's Code, relating to the deposit of wills before death with the County Clerk, are repealed by the repeal section of the proposed code. No other provision is substituted and quite likely County Clerks will refuse to accept custody of such wills.
Will Contests Under the head of "will contests," the last clause of Sec. 15, of the proposed code, provides that if no person shall appear within six months immediately following the probate or rejection of the will to contest the same, such probate or rejection "shall be binding and final as to all the world.” The present law, Remington & Ballinger 1309, gives the same binding effect "save to infants, married women, persons absent from the United States or of unsound mind,” for the limited period after their respective disabilities are removed. Married women probably no longer need any protection from the fact of their coverture, but the protection of infants, persons of unsound mind and persons absent from the United States, is customary in all legal proceedings, and it is suggested should not be foreclosed by law while the disability continues.
Testimony Sec. 1302, Remington & Balinger's Code, requires all testimony in support of a will shall be reduced to writing, signed by the witnesses, and certified by the Court. This provision is omitted from the proposed code. In our local procedure oral testimony established by the decree of the Court would undoubtedly
all requirements where the estate is located entirely in the State of Washington. In some of the States, we are adnvsed, in passing upon the foreign probate of a will, the Courts require a transcript of the evidence in support of the will. If the evidence is not perpetuated as provided by Sec. 1302 it might be expensive and embarrassing in probating the will in another state.
Adoptions The chapter on Adoption of Children (1696 Remington & Ballinger's Code) is not included in the proposed code; neither is it repealed. It would therefore stand as the law on the subject.
The County Clerks, however, would prefer to have it re-enacted
in the new code, if, for no other reason, that it settles the fee question. Under the present law it is regarded as a probate proceeding and a fee of $5.00 is charged.
Could it be construed as not a probate proceeding, the accountancy bureau would require us to collect in all $7.00.
Voluminous Records We now come to the question often discussed of how to avoid the making of voluminous records and recording. A great many orders are entered in all court proceedings that do not go to the merit of the matter at issue. Many volumes of records of orders and minutes of court are made when perhaps but few are of any future value.
The law requires the Clerk to record them, but even if the law allowed him discretion to record only such as he might deem matters going to the merits of the case, he would not dare exercise such discretion for the reason that he is under heavy bond. An order might be lost, mislaid or abstracted from the files, and if he could not produce a record he might become liable under his bond for damages. The only way to avoid a record of all court action is to enact a law that all pleadings and orders be prepared and filed in duplicate, the original to be accessible to the public only on an order of the Court, and to this plan there are as many objections as to the present practice.