State Ex Rel. Brown v. Long

Mitchell, J. The administrator with the will annexed of the estate of Sarah E. Smith, deceased, commenced this proceeding in the superior court under Rem. Rev. Stat., § 1472 [P. C. § 9928], against Sadie R. Brown and Fred R. Brown, alleging that they wrongfully withheld a large amount of personal property, consisting of bedroom sets, davenports, carpets, rugs and household furnishings belonging to the estate. The probate department of the superior court entered an order upon which a citation was issued requiring them to appear in person before the court at a time fixed, then and there to answer such questions as may be propounded to them upon oral examination by the administrator or his attorney, and to remain in attendance from day to day and time to time as the court may direct. The citation was duly served. They appeared specially in the cause and moved to quash the citation, for the alleged reason that the court was without jurisdiction of the subject-matter of the petition. The motion was denied. Thereupon, in open court, at the instance of the administrator, they were orally examined at great length concerning personal property in their possession, the examination lasting some three days. At the conclusion of the examination, the court declared the purpose of making an order directing them to permit witnesses to inspect the personal property either at the home of Sadie R. Brown and Fred R. Brown or that they display the property elsewhere for that purpose. Thereupon, Sadie R. Brown and Fred R. Brown commenced this proceeding in this *604 court to prohibit the judge of the superior court from exceeding its jurisdiction by its threatened order directing an unlawful invasion of their home and a violation of their personal rights. In response to an alternative writ, the respondent, judge of the superior court, has made and filed a full and complete return upon which the cause has been submitted. After reciting considerable matter of circumstantial and testimonial character, the concluding paragraph of the return clearly presents the situation. It is as follows: _ “Respondent further says that he did not at any time intend to require Sadie R. Brown or Fred R. Brown to permit any person to enter the home referred to but he did intend to, and unless restrained by this [supreme] Court, will issue an order compelling and requiring the said Sadie R. Brown and Fred R. Brown either to permit an inspection of the property in said home or require them to display the same at some place convenient to the Court, to counsel for both parties, and to witnesses for inspection, to the end that the witnesses may determine whether said property is the property of the Estate of Sarah E. Smith; and respondent intends, unless enjoined by this [supreme] Court, to mahe such an order cmd to enforce it by proceeding in contempt, if necessary.” Rem. Rev. Stat., % 1472 [P. C. § 9928], relating to probate law and practice, says: “The court shall have authority to bring before it any person or persons suspected of having in his possession or having concealed, embezzled, conveyed or disposed of any of the property of the estate, or who has in his possession or within his knowledge any conveyances, bonds, contracts, or other writings which contain evidence of or may tend to establish the right, title, interest or claim of the deceased in and to any property. If such person be not in the county in which the letters were granted, he may be cited and examined either before the court of the county where found or *605 before tbe court issuing tbe order of citation, and if he be found innocent of the charges he shall be entitled to recover costs of the estate, which costs shall be fees and mileage of witnesses, statutory attorney’s fees, and such per diem and mileage for the person so charged as allowed to witnesses in civil proceedings. Such party may be brought before the court by means of citation such as the court may choose to issue, and if he refuse to answer such interrogatories as may be put to him touching such matters, the court may commit him to the county jail, there to remain until he shall be willing to make such answers. ’ ’ Boiled down, the statute means that a person suspected concerning property of the decedent’s estate may be brought before the court, and if he refuse to ansiver such interrogatories as 'may be put to him touching such matters, the court may commit him to the county jail, there to remain until he shall be willing to make such answers. This statute in no way authorizes, nor was it intended to authorize, the superior court to try out the title to, nor the right of possession of, property claimed by the representative of an estate; nor to qualify any witness, whether interested or not, expert or non-expert, so that he may testify at some possible future trial, civil or criminal. The statute is one of discovery. It does not relate to the trial of any pending issue. We have so held. In State ex rel. Wolfe v. Superior Court, 139 Wash. 102, 245 Pac. 764, the statute was construéd, and in that action a writ of prohibition was granted against the superior court when it attempted to exercise powers beyond the authority granted by the statute. In that case, we said: “This statute is unquestionably within the constitutional powers of the legislature, and manifestly it confers jurisdiction on the superior court, sitting in probate, to bring before it any person suspected of *606 having in his possession property belonging to an estate and subject the person to an examination concerning such property. This it is authorized to do by citation, and, if the citation is proper in form and substance and is properly served, the court has jurisdiction for the purposes contemplated over the person of the individual cited. No question is here made as to the regularity of the proceedings in these respects, and seemingly, the only question for our consideration is whether the court has acquired jurisdiction to try out the matters of difference between the parties respecting the title to the property in question. “The court’s power to try the issue it has announced it will try must be found in the cited statute. Turning to the statute, it is at once apparent that it does not upon its face authorize the procedure here contemplated by the trial court. On its face it is a statute of discovery. It provides a means by which the representatives of an estate may bring before the court a person suspected of having in his possession, or having concealed, embezzled, conveyed or otherwise disposed of property of an estate, or suspected of having possession or knowledge of documents which might tend to establish title in the estate to property and subject the person to an examination with respect to the property. It provides, moreover, only for an examination. It does not directly authorize the court to make an order with respect to property, even if property is discovered. Much less can it be said, that it directly authorizes the court to try out the title to property claimed by the representatives of the estate on the one side, and by the person holding it on the other. If, therefore, the statute authorizes the procedure contemplated by the trial court, it does so, not by direct enactment, but by necessary intendment. But we cannot conclude that it has this effect. Seemingly, if the legislature had so intended, it would have expressed the intention in language not capable of being misunderstood, and not left it to surmise or conjecture. “Nor are the representatives of an estate left without remedy. The section of the statute quoted is from the probate code, and that code, in subsequent sec *607 tions (§§1517-1523) [P. C. §§9885-9891], provides remedies, not only for the condition here presented, but for every conceivable wrong that may be committed against an estate. The actions contemplated are actions under the general practice act, to be brought, tried and concluded in the way the general practice act prescribes. In them no reference is made to the remedy afforded by the section quoted, and seemingly this fact alone is almost, if not quite, conclusive evidence that the legislature did not intend it as an alternate remedy for the recovery of property.” True, that case differed somewhat from the present one, because, there, upon petition and citation under the statute, the trial court sitting in probate was asked to order delivery of property to the administrator, and the court announced its purpose to try out the title to the property. The situation, however, necessitated a construction of the statute in question, and the holding that the statute was one for discovery only is decidedly pertinent to the present case. Discovery, by the means and to the extent defined by the terms of the statute, is the limit of authority given. But the threatened action here is far beyond the relatively or comparatively mild and harmless thing authorized by the statute. Here, the respondent says that, unless restrained, he “. . . will issue an order compelling and requiring Sadie B. Brown and Fred B. Brown either to permit an inspection of the property in said home or require them to display the same at some place convenient to the court, to counsel for both parties and to witnesses for inspection, to the end that the witnesses may determine whether said property is the property of the estate of Sarah E. Smith.” Just why the court and respective counsel should be present when an inspection is made, “to the end that the witnesses may determine whether said property is *608 the property of the estate of Sarah E. Smith,” is not made clear, nor is it material. Besides, witnesses are not triers of facts; it is not their province to decide the ownership of property. Moreover, witnesses for what? There is no present trial of any issue between the parties. Is it intended to have a trial in the future or not, according to what the witnesses may determine upon an inspection of the property, in the manner threatened? Such a plan by which it is thought witnesses may qualify to testify in court would do violence to cherished forms and principles, and be at variance with well-understood fundamental rights. Nor is the alternative that the relators display the goods “at some place convenient ... to the end that the witnesses may determine whether said property is the property of the estate of Sarah E. Smith” in any manner less offensive to such rights and guaranties. In legal effect, the two are equal. There is no authority for either of the plans threatened to be ordered by the superior court. The writ should issue as prayed for. It is so ordered. Millard, C. J., Main, Steinert, Geraghty, and Blake, JJ., concur.