dissenting: By its order, the court determined that the will of Anna Drumheller was a nonintervention will, within the meaning of the statute, and authorized and empowered the executor to settle the estate in accordance with the terms of the will and without the intervention of the court. When the petitioner filed the inventory and appraisal with the court on November 30, 1925, and published notice to creditors on December 11, 1925, he had complied with the necessary statutory requirements. Thereafter, he could settle the estate without the intervention of the court.
Except for the nominal bequests of $1 each to the four children, petitioner was sole beneficiary. Both his half of the estate and that willed to him by his wife were subject to the community debts. Sec. 1342, Washington Statutes. Petitioner thus acquired title to all the estate subject to all the community debts. As he was the only person interested in the estate, other than the creditors, there was no reason why he should hold the estate in his capacity as executor. No decree of distribution was necessary for him to take the estate as sole distributee. Schirmer v. Nethereutt, 288 Pac. 265. TTis method of handling the estate and the income from it after December 11,1925, was that of an owner and not that of an executor.
The filing of a list of the claims with the court on June 11, 1931, five years after a list of such claims should have been filed with the court if the estate was to be settled in accordance with the provisions of the statute, is not sufficient, in my opinion, to prove that the estate was insolvent and could not be settled under the nonintervention provisions of the statute or that it had not been distributed to the petitioner.
It would not appear from section 1462 of the Washington Statutes, relative to settlement without court intervention, that an order of solvency is required, but the court must be shown that the estate is fully solvent before an order authorizing the executors to settle it in accordance with the terms of the will, without the intervention *215of the court, will be issued. In Strand v. Stewart, 51 Wash. 655; 99 Pac. 1027, which involved a nonintervention will, the court said that “the only purposes of the adjudication of solvency is to determine whether the estate shall be administered according to the provisions of the will or according to the provisions of the statute.”
While no order of solvency was issued in the instant case, the court must have been satisfied that the estate was fully solvent, because it authorized and empowered the executor to settle the estate in accordance with the terms of the will and without the intervention of the court.
The position which the petitioner now takes is inconsistent with that which he took at the time he offered the will for probate and he must abide by the earlier one. See Matern v. Commissioner, 61 Fed. (2d) 663.
It is a general rule that, when an executor is also legatee or dis-tributee, no formal act is necessary to vest title to the legacy or distributive share in him as an individual, any act on his part showing an intention to retain assets in payment being sufficient. 24. C. J. 411, and Mallet v. Hall, 150 Atl. 583.
In Henbestfs Estate, 12 Phila. (Pa.) 72, it was held that a deposit in his individual name by an executor who is also legatee, of rents which he had collected, is legitimate proof of his intention to retain them in part payment of his legacy.
In the instant proceeding, the general conduct of the farm, and the deposit of the proceeds from the operation of the business in his personal bank account, indicate a distribution of the estate, as well as of the income to himself as legatee and distributee.
I think, therefore, the determination of the respondent should be approved.
SteRNHAgen agrees with this dissent.