MYERS v. MYERS

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Docket Number

No. 1413-1.

Attorney(S)

Jonson Jonson and Henry H. Hurley, for appellant. Anderson, Stead Sampson and Theodore E. Sampson, for respondent.

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Smart Summary

Factual and Procedural Background

William D. Myers died testate on December 7, 1968, leaving his widow, Lucille C. Myers, and his son, Jack D. Myers, who was named executor and sole beneficiary. The will was admitted to probate on December 18, 1968. [1]

Although notice was mailed to the widow at an incorrect address, the executor’s attorney informed her that the will had been filed and probate proceedings were pending. The trial court found that she knew of the probate and was represented by counsel. [2]

The probate proceedings were completed, and a certificate of completion was filed on February 17, 1970. Approximately eight months later, the widow filed a petition and lawsuit seeking a $10,000 award in lieu of homestead and other alternative relief. [3][4]

The trial court found no fraud or other conduct preventing a timely claim, concluded that the claim was untimely, and dismissed the action. The widow appealed. [5]

Legal Issues Presented

Whether a petition for an award in lieu of homestead under RCW 11.52.010 may be granted when filed after the closing of a nonintervention probate estate and filing of a certificate of completion under RCW 11.68.010. [6]
Whether the requirement of timely filing applies to nonintervention probate administration as well as conventional probate administration. [7]
How the six-year period in RCW 11.52.010 operates in relation to the completion of probate administration. [8]

Arguments of the Parties

Appellant’s Arguments

The widow argued that RCW 11.52.010 entitled her to seek an award at any time within six years after the decedent’s death, even after probate had closed. [9]
She also argued that, if filing during administration was required, “administration” referred only to conventional administration and not nonintervention will administration. [7]

Respondent’s Argument

The respondent argued that the six-year limitation applies when there has been no administration or when the petition is filed while the estate is being administered. [8]

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Estate of Langill, 117 Wn. 268, 201 P. 28 (1921)	Estate administration is statutory, and statutes should be construed consistently with their purpose and spirit.	The court used this principle to interpret the probate statutes in light of legislative purpose and public policy. [9][10]
Francon v. Cox, 38 Wn.2d 530, 231 P.2d 265 (1951)	An award in lieu of homestead is unavailable unless a petition is filed.	The court relied on the case to establish that filing a petition is required. [11]
In re Estate of Boston, 80 Wn.2d 70, 491 P.2d 1033 (1971)	Authority concerning the requirement of a petition for an award in lieu of homestead.	The case was cited as additional support for that requirement. [11]
Cody v. Herberger, 60 Wn.2d 48, 371 P.2d 626 (1962)	Authority concerning the statutory homestead-award procedure.	The case was cited with Boston in discussing the necessity of a petition. [11]
National Bank of Commerce v. Peterson, 179 Wn. 638, 38 P.2d 361 (1934)	Probate administration should be settled promptly and expeditiously.	The court relied on this public-policy principle in requiring timely presentation of the widow’s claim. [12]
In re Estate of Offield, 7 Wn. App. 897, 503 P.2d 767 (1972)	A personal representative must know what assets may be used for expenses, claims, taxes, and distributions.	The court explained that late claims can delay distributions and expose the representative and recipients to potential liability. [13]
In re Estate of Still, 117 Cal. 509, 49 P. 463 (1897)	A petition is timely if filed before the estate closes.	The court cited this rule in defining the permissible filing period. [14]
In re Estate of Schmelz, 259 Cal. App. 2d 440, 66 Cal. Rptr. 480 (1968)	Where a decree of distribution is entered, a petition is timely if filed before entry of the decree.	The court cited this authority as an alternative expression of the timeliness rule. [14]
In re Estate of Brown, 28 Wn.2d 436, 183 P.2d 768 (1947)	The right to seek an award may be waived and may be lost through unjustified delay.	The court relied on this principle in concluding that the widow’s delay defeated her claim. [14]
In re Estate of Weidman, 209 Iowa 603, 228 N.W. 571 (1930)	Support allowances may be denied as untimely when sought after probate closes.	The case was cited as analogous support for requiring timely applications during probate. [15]
Andrews v. Brenizer, 230 S.W.2d 787 (Mo. App. 1950)	Support allowances may be denied when requested after probate administration ends.	The court cited it for the same analogous timeliness principle. [15]
In re Estate of Anofian, 178 Wn. 316, 34 P.2d 883 (1934)	The absence of unnecessary delay or lack of good faith supported a surviving spouse’s application.	The court distinguished the present case because the widow knowingly delayed without just cause. [16][17]
In re Estate of Poli, 27 Wn.2d 670, 179 P.2d 704 (1947)	An award was upheld where the petition was filed fourteen years after death but while probate proceedings were pending.	The court explained that the statutory amendment responding to Poli did not eliminate the broader requirement that probate steps be completed during administration. [8]

Court’s Reasoning and Analysis

The court began by treating estate administration and homestead awards as statutory matters. It interpreted the statutes according to their purpose and spirit, including the legislative policy favoring prompt and permanent disposition of estate assets. [9][10][12]

The court reasoned that a personal representative must know the estate’s obligations and potential claims before paying expenses, satisfying claims, or distributing assets. Allowing a surviving spouse to wait six years could require distributions to be delayed or could expose the representative and recipients to later repayment obligations. [13]

Balancing that concern with the surviving spouse’s statutory right, the court held that a spouse who knows probate is pending and has adequate time to file must submit the petition before the estate closes, or before entry of a decree of distribution where applicable. The right may be waived or lost through unjustified delay. [14]

The widow knew of the probate proceedings, was represented by counsel, and had no fraud or other just cause for failing to file earlier. She waited until eight months after completion of a fourteen-month administration. The court therefore concluded that her petition was untimely. [5][17]

The court rejected the distinction between conventional and nonintervention administration because the need for prompt settlement is no less substantial in nonintervention probate. [7]

Finally, the court construed the six-year language in RCW 11.52.010 as an additional limitation applicable when there is no administration or when administration has not been completed. It does not authorize filing after an estate has already been closed. [8]

Holding and Implications

The judgment dismissing the widow’s claim was affirmed. A surviving spouse who knows of pending probate and has no just cause for delay must petition for an award in lieu of homestead before the estate closes; the six-year period does not permit a post-closure petition when probate has been completed. [17][8][18]

The direct effect was to deny Lucille C. Myers’s requested $10,000 award and leave the judgment in favor of Jack D. Myers undisturbed. [4][18]

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LUCILLE C. MYERS, Appellant, v. JACK D. MYERS, Indi

[1] Executors and Administrators — Administration — Legislative Intent and Public Policy. The administration of decedents' estates is wholly statutory, and is subject to the overall legislative intent and public policy that there be an expeditious and permanent disposition of estate assets.

[2] Executors and Administrators — Homestead — Timely Petition — What Constitutes. In order to assert the right to an award in lieu of homestead under RCW 11.52.010, a surviving spouse who knows of the pendency of conventional or nonintervention probate proceedings must, except for just cause, file a petition claiming the award prior to the entry of a decree of distribution or the closing of the estate. That portion of the statute requiring the petition to be filed within 6 years of the decedent's death is an additional limitation applicable if no administration has been completed within such period. [See 40 Am.Jur.2d, Homestead §§ 174-177.]

Affirmed.

Action seeking an award in lieu of homestead. The plaintiff appeals from a judgment in favor of the defendant.

HOROWITZ, J.

The question presented is whether, in the probate of a nonintervention will, a petition for an award in lieu of homestead filed under RCW 11.52.010 may be granted if filed subsequent to the closing of the estate and the filing of a certificate of completion under RCW 11.68.010. The court below held the petition and suit to be untimely filed and denied an award. The surviving widow appeals.

William D. Myers died testate on December 7, 1968, leaving surviving the plaintiff, Lucille C. Myers, his widow, and the defendant, Jack D. Myers, his son. Plaintiff is defendant's stepmother. Decedent's will named defendant as executor and sole beneficiary. On December 18, 1968, the will was admitted to probate in King County cause No. E-197357, and an order was entered appointing defendant executor.

Notice of the appointment and of the pendency of the probate proceedings was inadvertently mailed to the widow at a wrong address. It is undisputed, however, that shortly after the admission of the will to probate, the executor's attorney informed plaintiff "that the Will had been filed and that probate proceedings were pending." The court found that plaintiff widow "knew said probate was pending in King County, Washington and that she was represented by her own counsel during the pend ancy of said probate."

An order of solvency was entered June 13, 1969. Defendant completed the probate proceedings and a certificate of completion of probate was filed on February 17, 1970.

On October 20, 1970, plaintiff filed a petition for a $10,000 award in lieu of homestead in the closed King County probate cause No. E-197357. On the same date she filed the suit below to obtain such an award. In that suit she sought alternative forms of relief. She prayed that defendant be reappointed as executor and that she be permitted to file a petition for the award; alternatively, that she be appointed administratrix de bonis non with will annexed; that the declaration of completion be vacated and that she be allowed the $10,000 award from estate assets. Alternatively, she prayed for judgment in the sum of $10,000 against the defendant individually and as executor of the estate.

Following trial, the court found "That there is no claim of fraud or other acts which prevented plaintiff from timely claiming any right to a homestead or an Award in Lieu of Homestead." The court concluded plaintiff's claim for relief was untimely asserted and entered the judgment of dismissal from which this appeal is taken.

[1] Plaintiff contends that under RCW 11.52.010 she is entitled to an award at any time within 6 years after decedent's death even if her petition or suit is filed after the probate administration is closed by the filing of a certificate of completion of probate pursuant to RCW 11.68.010. The question raised is not expressly answered by our probate code. However, it is pointed out in In re Estate of Langill, 117 Wn. 268, 201 P. 28 (1921):

In this state, the administration of estates is wholly statutory, and we feel free to give the statutes that construction which in our judgment will best accord with their purpose and spirit.

117 Wn. at 270.

Provision for an award in lieu of homestead is likewise statutory. RCW 11.52. An award in lieu of homestead is not available unless a petition is filed therefor. Francon v. Cox, 38 Wn.2d 530, 540, 231 P.2d 265 (1951). See In re Estate of Boston, 80 Wn.2d 70, 75, 491 P.2d 1033 (1971); Cody v. Herberger, 60 Wn.2d 48, 50, 371 P.2d 626 (1962).

Conventional and nonintervention will probate administration following admission of a will to probate provide the machinery for the collection of estate assets, the payment therefrom of expenses, claims and taxes, and the distribution of the remaining assets to estate beneficiaries. 33 C.J.S. Executors and Administrators §§ 1, 3 (1942); 31 Am.Jur.2d Executors and Administrators § 6 (1967). RCW 11.48.010 and the public interest, in both conventional and nonintervention will administration, require that there be prompt and expeditious settlement of estates. National Bank of Commerce v. Peterson, 179 Wn. 638, 644, 38 P.2d 361 (1934). The policy of expeditious administration is also evident from the relatively short time requirements imposed by the probate statutes concerning the completion of steps in probate. RCW 11.68, dealing with the settlement of estates without administration, and RCW 11.52, dealing with family support provisions including awards in lieu of homestead, are consistent expressions of the statutory policy of expeditious settlement of estates in probate.

E.g., see RCW 11.28.120, .030 (application as personal representative); RCW 11.28.237 (notice to heirs); RCW 11.44.015 (time for filing inventory); RCW 11.40.150 (notice on resignation, death or removal of personal representative); RCW 11.40.010 (filing of creditors' claims); RCW 11.40.030 (allowance or rejection of creditors' claims); RCW 11.40.060 (suit on rejected claims); RCW 11.24.010 (filing of will contests); RCW 11.76.010-.050 (report requirements, including final reports).

The personal representative, in order to discharge his duties with expedition, can do so only if he knows what estate assets may or must be used to pay expenses, claims and taxes, and to make distributions to beneficiaries. See In re Estate of Offield, 7 Wn. App. 897, 503 P.2d 767 (1972). Without the required knowledge, he is under the necessity of delaying payments and distributions until such knowledge is finally obtained. Premature payment out of estate assets may well result in his becoming personally liable for paying or distributing estate assets. Furthermore, those paid or those to whom distributions are made will or may be subject to the overhanging possibility of being required at a later date to repay to the estate, or to those entitled thereto, in whole or in part, sums or property received so that a claim of a higher priority may be satisfied. Thus, if under RCW 11.52.010 a surviving widow may delay filing a petition or making a claim for an award in lieu of homestead for a period of 6 years following the death of the decedent, payments and distributions may have to be delayed until the 6-year period expires or the right to file a petition is earlier waived. In the instant case, for example, plaintiff, who filed her petition and suit for an award approximately 8 months after the close of probate administration, now seeks as alternative relief a judgment for $10,000 against the defendant individually and as executor, the sum being that claimed as an award in lieu of homestead.

[2] On the other hand, if the state's statutory policy of prompt and expeditious settlement is to be carried out, it is not unreasonable to require the surviving spouse, who knows of the pendency of probate in adequate time to file a petition under RCW 11.52.010, to do so prior to the closing of the estate. A petition is timely if filed prior to the closing of the estate. See In re Estate of Still, 117 Cal. 509, 49 P. 463 (1897). Or, where a decree of distribution is entered, a petition is timely if filed prior to the entry of the decree. See In re Estate of Schmelz, 259 Cal.App.2d 440, 66 Cal.Rptr. 480 (1968). No statute or public policy mandatorily requires a surviving spouse to file a petition for an award in lieu of homestead whether or not she wishes so to do. She is given the right to file, but it is a right she may waive. In re Estate of Brown, 28 Wn.2d 436, 183 P.2d 768 (1947). Furthermore, it is a right which may be lost by delay without just cause or excuse in claiming the award.

The reasons requiring the timely application for statutory allowances for support are somewhat similar, although not necessarily identical with the reasons requiring the timely application for an award in lieu of homestead. It should be noted that there is case support for the view that application for statutory support allowances must be denied as untimely if made after the close of probate administration. E.g., In re Estate of Weidman, 209 Iowa 603, 228 N.W. 571 (1930); Andrews v. Brenizer, 230 S.W.2d 787 (Mo. App. 1950).

The case here is not one of a surviving spouse who fails to file her petition for the award either because she does not know the probate proceedings are pending, or because she has other just cause for not filing her petition during the pendency of the probate. In In re Estate of Anofian, 178 Wn. 316, 34 P.2d 883 (1934), the court in upholding a homestead award impliedly suggested the necessity for timely application in these words:

In this case, there is no allegation, nor is there any finding, of unnecessary delay or lack of good faith on the part of the surviving spouse in making his application.

178 Wn. at 318. Here the findings show that without just cause and with knowledge of the pendency of probate proceedings, and while represented by her own counsel, the surviving spouse waited until 8 months after the completion of a 14-month probate administration before she claimed an award in lieu of homestead.

Plaintiff also contends that if the petition for the award must be filed during probate administration, the administration must mean conventional administration and not nonintervention will administration. We do not agree. The necessity for expeditious probate administration is not less great in nonintervention will probate administration than it is in conventional probate administration.

Defendant, in support of the judgment, argues that RCW 11.52.010, fixing a 6-year limitation period "from the date of death of the person whose estate is being administered," means that the 6-year period applies only if there is no administration or if the petition is filed while the estate is "being administered." The quoted language was adopted as an amendment to RCW 11.52.010 to prevent the repetition of what occurred in In re Estate of Poli, 27 Wn.2d 670, 179 P.2d 704 (1947). There an award in lieu of homestead was upheld although the petition therefor was filed 14 years after the death of the spouse. However, the petition in that case was filed while the probate proceedings were pending, the proceedings having been commenced about 14 years after decedent's death. It is to be noted that RCW 11.52.010, as amended, did not purport to make any change in the overall legislative scheme which contemplates the completion of steps to be taken during probate administration. We agree with the trial court's conclusion that under RCW 11.52.010, as amended, the petition for the award "must be made during the time the estate is being administered, or if there is no administration or the administration has not been completed, then within six years of the date of death."

The judgment is affirmed.

WILLIAMS and CALLOW, JJ., concur.