in the majority opinion, and on the authority of that case, I think this one should be affirmed.

[No. 7324. Department Two. October 14, 1909.]

A. F. BICKFORD et al., Plaintiffs, v. ERWIN W. STEWART et al.,

Defendants.1

AUTHORITY.

ABSENTEES AGENT OF ABSENTEES - APPOINTMENT Where, upon the partition of an estate, an agent for absentees was appointed in probate to receive and care for their portion of the estate, distributed to them, and later by a suit in equity, the distribution was set aside and a different tract of land distributed to the absentees in lieu of the first, the agent still retains authority to act under the appointment in probate as to the later parcel finally awarded.

SAME-SALE BY AGENT-PETITION. Where an agent for absentees was appointed in probate, under Bal. Code, § 6371, to receive their portion of the inherited estate distributed to them, and the appointment was later continued in a suit in equity instituted for a redistribution, a sale by the agent under order of court pursuant to § 6373, is not affected by the fact that the petition for sale was filed in the equity case; since that court had then acquired and exercised probate jurisdiction over the estate.

SAME-POWER TO SELL-CONSTITUTIONAL LAW-TAKING PROPERTY WITHOUT DUE PROCESS OF LAW. The act, Bal. Code, §§ 6371-6375, authorizing the appointment in probate of an agent for absentees to receive their portion of the estate, and if not claimed within one year, to sell the same under an order of court, paying the proceeds, less expenses, into the county treasury, for the use of the absentees, is within the inherent legislative power of the state to control the inheritance and descent of property, and does not violate the constitutional inhibition against the taking or sale of property without due process of law.

DESCENT AND DISTRIBUTION-RIGHTS OF HEIRS-TITLE. Property only descends to and vests in the heirs subject to administration, and may be divested by the process of administration.

ABSENTEES-APPOINTMENT OF AGENT-SALES-METHOD OF SALESTATUTES. The act, Bal. Code, §§ 6371-6375, authorizing the appointment in probate of an agent for absentees to recover their portion of the estate, and to sell the same if not claimed within a year, is

'Reported in 104 Pac. 263.

not ineffective as to the sale by reason of failing to provide a method of sale, where it provides for sale by the agent "under order of court" and all the procedure required for administrator's sales was followed.

RUDKIN, C. J., CHADWICK, FULLERTON, and GoSE, JJ., dissent.

Cross-appeals from a judgment of the superior court for King county, Albertson, J., entered March 27, 1908, upon findings awarding plaintiffs reimbursements for improvements, after a trial on the merits before the court without a jury, in an action to quiet title. Reversed on plaintiffs' appeal.

Kerr & McCord, for plaintiffs.

Sullivan & Stevens and H. H. Eaton, for defendants.

MOUNT, J.—The plaintiffs brought this action in the lower court to quiet title to certain real estate against the claims of the defendants. Upon the trial of the case, the court found that title to the property was in the defendants, but that plaintiffs were or should be reimbursed for certain improvements placed thereon, and entered a decree accordingly. Both parties have appealed. They will, therefore, be designated in this opinion as plaintiffs and defendants.

Under the view we take of the case, it will not be necessary to pass upon several questions argued in the briefs. It seems that Martin V. Stewart died intestate in King county on May 29, 1895. He left no wife or children or father or mother. Several brothers and sisters, or the descendants of such brothers and sisters, survived him. At the time of his death, he was seized of certain real estate in King county, a part of which is the property in question in this case. The defendants Erwin W. Stewart and Lizzie Stewart are the only children of Erwin M. Stewart, a brother of said Martin V. Stewart. The said Erwin M. Stewart died intestate about a year before the death of his brother Martin V. Stewart. The legislature of the state of California passed an act in the year 1866, when the children Erwin Webster Stewart and

Opinion Per MOUNT, J.

[55 Wash. Sarah E. Stewart were about ten years of age, which act changed the names of these children to Webster Smith and Sarah E. Smith. The latter was afterwards married, and is known in the title of the case as Sarah E. Martin. The defendant Webster Smith is the same person as Erwin W. Stewart, and Sarah E. Martin is known in the record as Lizzie Stewart. They will be hereinafter referred to as defendants.

After the death of Martin V. Stewart, his estate was regularly administered upon by the probate court of King county, and the estate was distributed to nine brothers and sisters and their issue, among whom were the defendants in this case. Before the distribution by the probate court, a petition was filed therein for a partition of the estate. When this petition came on to be heard, it was made to appear to the probate court, that the defendants in this case were nonresidents of the state; that their address and residence were unknown, and that they had no agent in this state, and that it was necessary for some person to take charge of their interests in the estate and care for the same. The probate court thereupon appointed one Fred Rice Rowell as agent for that purpose, under Bal. Code, § 6371 (P. C. § 2695), and he duly qualified as such. appointed, and the estate was October 25, 1898, in probate. A certain definite share of the estate was awarded to each of the brothers and sisters of Martin V. Stewart, or their issue. The defendants were awarded a portion known as tract 4 of the Stewart estate. Possession of this tract was taken by Mr. Rowell, as agent appointed as above stated.

Thereupon a commission was partitioned by a decree dated

Thereafter, in September, 1899, one Ann M. Arnold, a surviving sister of Martin V. Stewart, deceased, and who had been omitted from the distribution of the estate of her deceased brother, brought a suit in the superior court of King county against all of the distributees of the estate by the probate decree. She alleged in her complaint that she was a

sister, and entitled to share in the estate. Service in that case was made upon all the parties, and upon these defendants by publication. Personal service was made upon their agent appointed as above stated. Thereafter, in January, 1901, a decree was entered in that case, which set aside the distribution of the estate by the probate court and made a new distribution of the estate. The part set over to these defendants was lot 9 of the Stewart estate. This lot was a smaller and a different tract of land from the one awarded in probate. This decree did not disturb the appointment of Mr. Rowell as agent of these defendants, but continued him as such.

In June, 1902, Mr. Rowell, as agent for these defendants, filed a petition in the superior court of King county, stating that he was in possession of property, viz., lot 9, of the Stewart estate, and had been since his appointment as agent; that Erwin W. Stewart and Lizzie Stewart were nonresidents; that he had been unable to find where they were, or to communicate with them; that he had made diligent inquiry to learn where they were, but without success; that the property was nonproductive, and that taxes and special assessments were due and coming due; that there were no funds to pay the same; that he had held the property for more than one year and no claim had been made therefor, and prayed for an order to sell the property. A notice was published to all interested persons to show cause at a fixed time why the order should not be made as prayed for. An order afterwards was made, and in pursuance thereof the agent, after notice, sold the property to Hester E. Finley and made return thereof, and the sale was confirmed on September 23, 1902. The purchaser entered into possession of the property under the agent's deed, and in January, 1904, sold the property to the appellants, who went into possession and improved the same.

Upon these facts the trial court was of the opinion that the sale by Mr. Rowell, as agent of these defendants, was

Opinion Per MOUNT, J.

[55 Wash. void, and did not divest them of the title to the lot in question. There is nothing in the record to indicate upon what ground the court concluded that the sale was void. Counsel for defendants, in their brief, contend that the proceedings were irregular because the lot sold was not the one for which the agent was appointed in the probate proceedings, and alsɔ that the statute under which the agent was appointed is unconstitutional for the reason that it authorized one's property to be taken and sold without notice and, therefore, without due process of law.

It is true that the lot finally awarded to the defendants was not the one awarded to them in the probate proceedings. The one awarded in the probate proceedings was erroneously awarded, because it was more than the share to which defendants were entitled. The subsequent suit in equity was for the purpose of correcting that mistake. The property finally awarded by the court in equity was the property which should have been awarded in the probate proceedings. Defendants' title came to them by inheritance or by operation of law, and was, therefore, not affected by the manner of the decree or the name or nature of the court which finally made the distribution. The agent was appointed in the probate proceedings before any definite tract of land was distributed to the heirs. He was appointed to represent these absentees, and to care for their interests in the partition of the estate, and to receive the portion awarded to them. The right of the agent to act under the appointment in probate was not affected by the parcel of land which was awarded to the defendants. It was his duty to receive whatever land came to the defendants from that estate. There seems to be no other irregularity in the proceedings, and we are therefore of the opinion that there is no merit in the contention that the lot was not the one over which the agent was appointed.

The statutes of this state provide for the partition and distribution of estates of deceased persons as follows:

"Bal. Code, § 6371 (P. C. § 2695). When any estate shall have been assigned by decree of the court, or distributed by