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code, on page 30, that “No sale or mortgage of any property of an estate shall be made except under an order of the court, unless otherwise provided by law.”
Mr. Henderson: For the sale of real property at any time prior to the expiration of the limit for filing claims the executor or administrator may sell real property, the proceeds from which will be applied first to the payment of claims, so the real estate may be sold free of claims under that provision, and the code provides for the settling of estates within a period of four months, if possible, the four months, I mean, provided for the filing of claims. Ņotices of publication have been eliminated, and in its place, with reference to the sale of property-in fact, the statute now provides, as no doubt you know, that the court may, if it desires, eliminate all notices except that the parties interested may, at any time after the probating of the will or after the appointing of an executor or administrator, file notice with the clerk that they desire notice of all proceedings concerning sales of property to be served upon them, and they would, therefore, be entitled to notice of a petition for sale of property before the sale could be made, but it would not be necessary to make publication of notice concerning sales of real property either in guardianship or estate matters. Mr.
I notice in your new code that witnesses to a will must not sign in the presence of each other. Is there any particular reason why you do not want them to sign in the presence of each other?
Mr. Henderson: None, as far as I am concerned. The idea of the Committee was to make the execution of a will and the certificate of the witnesses as simple as possible, and it was intended to provide in the new code that the witnesses must sign in the presence of each other, but not necessarily to so appear in the certificate. It might be a matter of proof rather than certification. So far as the Chairman is concerned, I approve of the old system, to have the certificate of the witnesses to be and recite that the witnesses signed in the presence of each other.
Mr. Jones: This code, I see, contains a great many of the provisions of the old code. I call your attention to Section 71, page 18, Special Administrators. These matters, of course, come to the lawyer in the course of his practice.
“When, by reason of an action concerning the proof of a will, or from any other cause, there shall be a delay in grant
ing letters testamentary or of administration, the judge may, in his discretion, appoint a special administrator, other than one of the parties—"
I have never found a court yet who knows what that word means—.“other than one of the parties.” Other than what!
Mr. Henderson: My recollection is that that is copied directly from the present code, and I do not remember the Committee's attention ever having been called to the subject, and the Committee could eliminate that “other than one of the parties” with profit.
Mr. Jones: In Section 73, of Special Administrators, on the next page, it says:
“Such special administrator shall collect all the goods, chattels, and debts of the deceased, and preserve the same for the executor or administrator who shall thereafter be appointed; and for that purpose may commence and maintain suits as an administrator, and may also sell such perishable and other goods as the court shall order sold, and he shall be allowed such compensation for his services as the said court shall deem reasonable.''
But there is no provision in our state whereby a widow or family can be cared for during the time of special administration. Do you make any such provision?
Mr. Henderson: I will say that has been taken care of by the provision of homestead approved by the committee, and that is one important particular and important change that the Committee has proposed in the new code, and that is an authorization of the court to set aside, out of the assets of the estate, to the surviving spouse and minor heirs, an estate of three thousand dollars that would not be administered upon, but would be free
Judge Chadwick: Mr. President, it is evident to me that this body cannot consider, with any comprehension, the proposed code. The question for us to determine, in the first place, is whether we want a probate code. Now, when that is settled, then we may take up the detail of this thing, and, in order to get the question before this Association in a proper way and to settle the first question in its order, I move that the whole subject of a probate code be indefinitely postponed.
The motion received a second.
Mr. Henderson: Mr. President, I want to call this Association's attention to the fact, not in so far as this Committee is concerned—that is satisfactory--but this Association made
a pledge to the 1915 Legislature that it would present a probate code to the session of 1917. You went on record that you wanted a probate code, and that pledge was spread upon your minutes. I am greatly of the opinion that this Association may not agree on a probate code, but the Association did go on record on that question, and I rise to a point of order, unless this is a motion to reconsider a question that has already been determined by this Association.
Judge Chadwick: I will amend my motion by moving that we indefinitely postpone a consideration of the probate code and that Mr. Henderson go to the next Legislature and state that this Association has changed its mind.
Mr. Lund: Why should we do that? We all know that the probate code of this state is very cumbersome. It ought to be changed in some particulars. It seems funny to me to say that we cannot consider it. We might not come to a unanimous opinion upon it. We can certainly give our views to the next Legislature. The code ought to be changed. We have, in my estimation, the most cumbersome probate code that I know of, and it seems to me there ought to be some changes. I would hate to subscribe to the proposition that we cannot consider it. If the lawyers of the state cannot consider it I do not know who can consider it. A man behind me says “The Supreme Court." They have considered and construed it, and yet it needs changing. We ought not to have a law that will permit the executor of a non-intervention will to loot an estate. Where the executor of a non-intervention will can pass on his own claim and there is nobody to reconsider that matter, it seems to me that something ought to be done to change it. Several matters ought to be changed in the probate code and I do not think we ought to play the baby act about it at all. I find the present procedure very cumbersome, and full of very many unnecessary requirements as to publishing notices and so on. I think we ought to consider the proposed code.
Judge Chadwick : Mr. President, as the mover of the motion, I think it is no more than fair that I should explain my position. Mr. Allen is proceeding upon the assumption that the Legislature of this state is going to enact a probate code. Now, I have no information that the Legislature is going to enact a probate code. I have never heard any demand for a probate code from anyone other than at these sessions. It comes of the disposition in these days to put
everything into a code and rewrite all the law. Now, there must be a purpose in that, and that purpose is to settle the law. But codes do not settle laws; codes only unsettle laws. We have adopted, within the last five or six years, codes upon different subjects. We have already adopted a criminal code, when there was no demand for it. It was put through the Legislature in the last hour of the session, without any consideration, and, abandoning the construction of sixty years. Half of the body of it was taken from New York and half of it from Minnesota, and it was not even skilfully welded together, and so we have entered upon that and the law is unsettled. And now, in this case, we have had for more than sixty years a probate code. There is not a lawyer practicing at the bar of the state of Washington who, with years of experience or the experience in one estate, does not know how to probate an estate and he will not make any mistakes. There are never any cases come to the Supreme Court of this state involving probate practice. The lawyers understand it, and now why we should simply abandon this whole thing and adopt a new probate code is one of the things I cannot understand.
Mr. Allen: Under our present code who fixes the fee of the attorney for the administrator?
Judge Chadwick: The court.
Mr. Allen: We have courts that don't know it. They say it is a private contract between the
Judge Chadwick: We can't help that, if your courts don't read the code we now have. I want to say that there is not a defect that has been pointed out that could not be corrected, admitting that there are defects--and I would not quarrel with you on that-but all those things could be corrected by one or two simple amendments. I want to say here that you have adopted codes and codes and codes in the last ten years upon every conceivable subject. Did it settle the law? It has only made litigation. It has only raised questions for the court, because our temper is such that we will not accept anything until we have the court's decision upon it. In the session laws of the last Legislature there are ninety index pages, and eight and a half pages of that index are taken up with amendments to codes that you had adopted before. If there is some particular thing wrong, if we are allowed too much time for the presentation of claims, why, draft a simple amendment. Let the Legislature do it, and pass it. I tell
you, my brothers of the bar, we are getting mad on the theory of passing laws and the theory that a law passed by the Legislature settles something. I read in a newspaper the other day, and I have no reason to doubt it and I have heard no one dispute the truth of it, that in the last five years there have been sixty-five thousand laws passed by the Legislatures of the several states of the United States as against less than a thousand in all the British empire. Now, the way to settle the law is to let the law alone and not be forever adopting a code. And I want to urge my motion seriously, my brothers. If some particular section needs amending let us suggest an amendment, but let us leave the old letter of the law right where it is with all the constructions of all these years.
Mr. Bridges : Mr. President, Gentlemen: I have given this question of the probate code study for the past five years. Possibly some of you do not understand how this thing came about. I think that five years ago Governor Hay appointed some lawyers, among the rest myself, to look over the various codes and see if they could make any recommendations to the Legislature which would be beneficial. That committee met several times. It resolved that the probate code of this state needed changing very badly. It appointed a sub-committee, the subject being too large for the whole committee, and I was a member of the sub-committee and commenced working on the matter. Now, I have the very highest respect for Judge Chadwick's opinion in this matter, but I do not know whether he has read or, if he has read, whether he has studied the proposed code. As a matter of fact there were these things taken into consideration in re-writing this code. First of all was to keep the body of it. The way it was rewritten was to take the present code at its first section and follow it to the end until the present proposed law is in its present shape. I want to make this assertion, that the present proposed code does not destroy five per cent. of the value of all the decisions of all the courts upon our present law. The proposed new law has been drawn, throughout, with an express view to keep, to the utmost
the value of the decisions of the courts on the old law, and I have no hesitancy, and I think my brother Henderson will agree with me--in fact, I know he will because he so expressed himself-I have no hesitancy in saying that ninety-five per cent. of the value of the litigation decided, either by the Superior Courts or the Supreme Court, are retained under the proposed law. Now,