, 1892-12-03
ROBINSON UPHELD.
The Supreme Court Decides That
His Opinion Was Correct.
The Celebrated Moses Scott Case, in
which IL is Decided That Scott
Cannot Recover His Former

n AH CbACDA eANNA uAUAOa SDONN CeAHS9 AAA
which IL is Decided That Scott
Cannot Recover His Former
Property.
The supreme court yesterday rendered
the following decision in the interesting
Moses H. Scott case:
Moses H. Scott, appellant, VS.. John Nc
Neal and Augustine McNeal, respond
ents. No $50. Filed Dec. 2, 1892. From
ThurstOn county.
This is an action ofejectment brought by
appellant against the respondents to re-
cover possession of certain lands in Thurs
ton county. The defendants claim the same
under a deed from Samuel G.. Ward, who
purchased the land at an administrators
sale. In March, 1881, the appellant, who
was at that time resident of Thurston
county, in this state, then territory, mys-
teriously disappeared. At that time he
was the owner of the lands in question, the
same being subject to a mortgage given to
one T. +. McElrOy. After q lapse of over
seven years one Mary Scott, who claimed
to be a creditor of the appellant filed pc
titiOn in the probate court of said county,
alleging the fact of ScOtt's disappearance
more than seven years previously, and that
careful inquiry made by his relatives and
friends at different times since said disap-
pearance had failed to give any knowledge
or information of his Wherea bouts, or any
evidence that he was still living, and al
legged that she verify believed him to be
dead, and that he had died at the time of
his disappearance; that he was never mar
ried, and left no last will or testament;
and that he had left real estate (being the
land in controversy in Thurston county.
She also named several minor chill
dren of his deceased brother as his
heirs; that she was a creditor, etc., and
prayed for an administration of the estate.
A notice of the hearing of said petition was
given, and upon the day set for the hear
ing, witnesses were examined and the
court found from said testimony that said
Scott was dead, and appointed an admins
traitor as prayed for.
A number of objections are raised to the
probate records, some of which go to the
jurisdiction Of the court relating to the
suticiency of the petition, and the posting
of notices. Appellant alleges that the petit
ton was defective in that it did not state
that Scott was a resident of ThurstOn
county at the time of his death. The al
legation in the petition is
THAT one Moses H. Scott, heretofore
resident of the above named county and
territory (ThurstOn county, Washington
territory, mysteriously disappeared some
time during the month of March, A, d.
1881, and more than seven years ago."
We think this was sufficient, as the
word heretofore" should be held to relate
to the time of his disappearance.
He also objects to the posting of notices,
because itappears from the affidavit of the
person posting the same that he had posted
three of the notices in three public places
in ThurstOn county, as the law required
without stating where they were posted.
At the hearing, however, the court found
that due notice of said hearing had been
posted in three public places, as required
by the statute and we think the petition,
notice and proof we're sufficient to give the
probate court Jurisdiction.
The estate was administered step by step
down to a sale of the lands to said Ward,
and the records were introduced in evil
dence against numerous objections made
by the appellant. Those objections, how
ever, were mainly aimed at Irregularities
in the proceedings which did not affect the
Jurisdiction of the court, and appellant
was not in position to take advantage of
them in collateral action. In addition to
the records of the probate court in said
matter deed from Ward to defendants
was also admitted in evidence.
Appellant was a witness in his own be-
half, but he made no attempt to explain
his manner of leaving or his absence.
The defendants after purchasing the
property took possession of it and made
valuable improvements. They stand in
the position of innocent purchasers and
and the question is, under this peculiar
condition of affairs, which one of the par
ties must suffer2 The equities of the case
seem to be clearly with the defendants. for
as the matter appears appellant willfully
abandoned the property in question, and
he certainly had no reason to expect that
proceedings of the kind would be insti-
tuted after lapse of years in case his rela-
tiyes and other interested parties should
not be able to obtain any information of
his existence or whereabouts.
1t is argued however. that to give effect
to these probate proceedings under the
circumstances would be to deprive him of
his property without due process of law,
The question is a very interesting one. 1t
has been passed upon by other courts, and
the decisions are conflicting. The action
of the lower court in this instance is sus-
talned by the case of ROderigas VS.. East
River Savings Inst, 68 n, Y. AGO. This
case has received much adverse criticism
and also some favorable comments. The
appellant argues that it would be in ap-
plcable here because under the New York
statutes the court in an application for
letters of administration had authority to
hnd the fact as to the death of the intestate.
while under the laws Of this territory this
was not matter in issue. But we are un-
able to agree with him. Our statutes only
authorize administration of the estates of
deceased persons, and before granting let
ters of administration the court must be
satisfied by proof of the intestate. The
proceeding is substantially in rem, and all
parties must be held to have received no
tice of the institution and pendency of such
proceedings where notice Is given as re-
quired by law.
Section 1893 of the 1881 code gave the
probate court exclusive original iurisdic-
tion in such matters, and authorized such
court to summon parties and witnesses
and examine them touching any matter
N controversy before the court or in the
exercise of its jurisdiction.
We are of the opinion that it would serve
no good purpose to undertake a review of
the various cases and criticisms bearing
upon this subject, but content ourselves |
with reference to WOerner's American |
law OF Administration, sections 2lO, 2l1, |
and authorities there cited
Under the circumstances of this case, |
and after the best examination we have |
been able to give the matter, we are in
clined to follow the ROderigas case. The |
judgement of the court below is affirmed. |
SCOTT, j
We concur; Anders, G. j.; Dunbar, j.;
Hoyt, j.; Stiles, J.
NOvw ,Frv This