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event the will should not be revoked or annulled at the trial. The statute provides that such parties should pay the cost, but frequently impecunious persons attack the validity of a will and put the estate to large expense, which a mere provision providing for the payment of the costs, without securing this payment, will not cover. Such bond should cover the costs, including a reasonable attorney fee for the executor in defending a will. If the person is successful, he is protected by the property of the estate.
In Section 82, some provision should be made for a time limit when the partner of a deceased person should turn over to the executor or administrator the interest of such deceased partner. It might otherwise unduly delay the close of the administration.
In Section 87, a provision should be made for the appointment of appraisers in different counties, should the property be located in several counties, with a provision that one or more appraisers for any county might act in the other counties. The present provision only provides for three appraisers, who, while being eminently fit to appraise property in one county, might have no knowledge whatever of its value in another county.
Some provision should be made in connection with Sections 91 and 92, to force the executor or administrator to include in an inventory, property claimed by persons interested to belong to the estate but which the executor or administrator may, for personal reasons, not desire to admit belongs to the estate or to include in the inventory. I do not believe Section 92 exactly covers the situation.
In Section 120, the bill should be amended so that ninety per cent of the appraised value must be received, only in the event of private sale. We believe most attorneys know from experience that it is sometimes impossible to realize that percentage of the appraisement, and any amount received on public sale, if approved by the court, should be valid.
I have not noticed any provision for the appointment of a guardian ad litem, when such provision should of course be in the code.
Section 155, in my opinion, should be amended somewhat. In the first place, a funeral expense of $75.00 is not sufficient in many instances. The amount should not be limited, but should be in an amount subject to the approval of the court.
Sub-section 6, of Section 155, I believe, is unconstitutional in so far as it attempts to give priority to debts secured by mortgage or judgments, which are liens upon real estate in favor of the debts specified in sub-sections 1, 2, 3 and 4, unless the debts having preference by the laws of the United States are a lien upon the real estate. It would not be legal to deprive the mortgagee or judgment creditor of a preferential right to satisfaction of the debts, out of the premises upon which he has a lien. Such a provision would destroy the ability of persons to secure mortgage loans.
With reference to the provision for the specific performance of decedent's contracts, it seems to us that there is no necessity for the delay of four weeks, or more, in the event of personal service upon the executor or administrator, where the executor or administrator admits the validity of the contract and the amount that is still due thereon. It frequently happens that a person has sold property under contract and dies with but a small amount remaining unpaid; that the contract of purchase has been of record and that there is no question in the minds of anyone connected with the estate, as to the validity of the contract or the amount due, it is unjust to compel them to wait for four weeks or more, before the court can pass upon the question. The provision is all right in contested cases, but a simple provision should be inserted that where the contract of sale was on record prior to decedent's death, or where the executor or administrator is satisfied that a deed should issue in accordance with the terms of the contract upon the payment of the balance due, and there is no dispute as to the balance due, and upon a hearing make such showing to the court that the court should, without any further notice or any further delay, enter an order authorizing and directing the executor or administrator to execute said conveyance in conformity with the contract. We know that personally we have had several cases in the office, where but an insignificant balance was owed, where the contract was conceded to be valid by all parties and no dispute existed as to any of its terms or the amount due and where the purchaser desired to pay the balance and get the deed, and the executor or administrator and the heirs were not only willing, but anxious that it be closed as expeditiously as possible, they have been forced to wait for more than a month until the statutory requirements can be observed.
In addition to the objection to the sections as written, we notice that the time for presenting claims has been reduced from 12 months to 4 months, but no provision is made for the presentation or the payment of claims that are contingent in their character, and which may not become either due or ascertainable during the four months period. I refer you to the case of Barto vs. Stewart, 21 Washington, 605, where our supreme court passed upon the necessity of presenting contingent claims, and that in the event of their not being presented, they would be barred. Frequently a person might have executed a lease with covenants for quiet enjoyment, or a deed with covenants of warranty and quiet enjoyment, or agreements for party walls, or any number of things concerning which no claim of any kind existed at the time of the death of the decedent, but which might thereafter arise. The decedent might be a stockholder in a banking or insurance company and subject to the constitutional or stat. utory double liability, as was the case in Barto vs. Stewart. Yet, under the decision of our court such a claim of liability, although
not existing in any form such that it could be presented within the limit fixed by this code, would be outlawed and barred by the statute of limitations by reason of failure to present it. In most states provi. sion is made for either the keeping of funds in the treasury of the court or providing that in the event any claims are not ascertainable so that they can be allowed and paid in the administration of the estate, they need not be presented, but that the claims are claims against the persons who received the property of the decedent to the extent of the property so received. Certainly some provision should be made to meet this situation.
Yours very truly,
By J. E. Burkey.
Tacoma, Washington, August 4, 1914. Mr. C. Will Shaffer, Secretary State Bar Association,
Wenatchee, Washington. Dear Sir:
Have received the copy of the new proposed Probate Code. Have glanced at this rather hastily, but am of the opinion that the Bar Association should not take any action recommending its passage by the Legislature at this session. It ought to be referred to a committee of from seven to thirteen lawyers for examination and investigation before its passage is recommended to the Leg. islature.
The Criminal Code is an example of the passage of hasty codes upon special subjects. It will take the supreme court 100 years to settle questions under it and a new code of robate should not be adopted unless it has been thoughtfully and critically examined and analyzed so that every change will be for the better. The state is not suffering for a new probate code and if one should be passed too much care can not be devoted to it in advance. Trust you will call the attention of some of the attorneys to this matter. My observation is that we get about as much crude legislation from hasty action of lawyers as we do from the grangers.
Time for reflection and thought by individual members of the Association will certainly not do the state any harm.
Had fully intended to attend the Bar Association this meeting, but there are so many recalls floating in the air that require the attention of the courts that I can not get away.
P. C. SULLIVAN.
Mr. Aylmore: Before Mr. Jones has the opportunity to do with this report as he did with the other, I would suggest that all these suggestions made in this report be printed and copies given to each member before the next meeting, so they can be of some use to us before the next legislature.
Mr. Burcham: I would like to add the further clause that copies of this report be given the Legislative Committee with the instruction that they shall report and act upon in at the coming legislature.
Mr. President: Do you accept the same as an addition to the motion ? Mr. Aylmore: Yes, sir.
Mr. President: Gentlemen of the Association, we have two papers on this same subject, and I think it would be well to have those papers before we enter into a discussion of the subject of the probate law. Mr. Rowland, of Tacoma, “The Probate Law.”
Mr. Rowland: Mr. President: (Reads paper.) (See Appendix.) (Applause.)
Mr. President: We will now hear from Mr. D. K. Sickles, Deputy County Clerk, Probate Department, Seattle, on the subject “Probate Records and Procedure."
Mr. Sickles : Mr. Chairman and Gentlemen: After listening to the papers of Mr. Henderson and Mr. Rowland, I feel that I am left in the air, as it were, without anything to stand upon. The probato law of the State of Washington, in its general features, is recognized, I believe, as perhaps the best of any state in the Union in regard to the descent of property and the community provisions. The forms and procedure of the present law grew out, largely, of the old fee system which was in vogue in the territorial days when the Judge of Probate depended entirely upon his fees for compensation. It resulted, either through legislation or otherwise, in the establishment of a large number of forms and
notices and that sort of thing that has come down to us. The law in regard to descent and community property has not been changed. The law in regard to fees has been changed, so that this code, while not dealing with the subject of fees, has prescribed a procedure that cuts out a large amount of forms which are only useful to abstracters and attorneys examining abstracts and not really necessary in the settlement of an estate. The only serious objection that I can find to the proposed new code is that it does not take in all of the chapters that relate to probate. While these chapters that I refer to, the law on the descent of property, the law on community estates and the law on the question of the adoption of children, are not repealed by this proposed code, they are not included in it, and I think a lawyer probably finds as much trouble, when he wants to know what the law is, in getting it located in the code as from almost any other source. For instance, on the sale of real estate there are two or three different methods, under the present law, of selling real estate. His eye catches one of those. He may omit to see the other and proceed in a way that would be found defective in an examination of an abstract. So I think, if I had been preparing this code, I would have put in all these things that relate to probate law and have it all in one place in the code.
My talk will be short, Mr. President. (Reads paper.)
(Interpolated after “recording of claims":)
That subdivision 5 in the code, as it passed the House of Representatives, had a provision in it for recording petitions for the sale of real estate. It is omitted from this proposed code, and very properly.
Mr. Burcham: Excuse me; do you understand that subdivision 1 of that section, in which it speaks