80 Wash. 506 | Wash. | 1914
Lead Opinion
The plaintiff, as administratrix de bonis non of the estate of Daniel Schneider, deceased, brought this action against the executrix of the former executor of that estate for the sum of $2,500, based upon a rejected claim against the estate of Fred M. Schneider, the former executor. On September 6, 1901, Daniel Schneider died, leaving a will, the clauses of which material here are as follows:
“Third, I hereby give, bequeath and devise to Fred M. Schneider, my son, of King county, Washington, and to Ellen Stull, my daughter, of the state of California, all my property, and estate, of every nature whatsoever, wheresoever situate, both real, personal and mixed, in undivided halves, share and share alike; subject, however, to the fulfillment of the uses and trusts hereinafter provided for.”
“Fifth: I hereby direct that my said executor shall receive all the rents, profits, issues and incomes of all of my said real estate, and that he shall use and dispose of the same for the use and benefit of Clarence Stull, aged eleven years, son of the said Ellen Stull, and also for the use and benefit of Freeda Schneider, aged five years, daughter of the said Fred M. Schneider, during the whole of the period until the said Freeda Schneider shall have attained the age of majority,*508 this trust to terminate at that date or when said Clarence Stull shall have attained the age of majority, in the event of the death of said Freeda Schneider prior to that time, in which event the said Clarence Stull shall continue to receive his undivided one-half of said rents, issues and profits of said real estate, until he shall have attained the age of majority; the trust hereby created shall also terminate in the event of the death of both said Clarence Stull and said Freeda Schneider before either of them shall have attained the age of majority; said rents, issues and profits to be divided equally, when received, and paid by my said executor to the respective guardians of the persons and estates of said minor children, share and share alike, as often as the same shall be received, but not of tener than once in each calendar month.”
Fred M. Schneider and Ellen Stull were all of the children of Daniel Schneider. Fred M. Schneider was named as executor, qualified as such on September 17, 1901, and continued so to act until his death. He collected the income and paid one-half to Freeda Schneider and one-half to Clarence Stull, through their respective guardians, as directed by the will, until February, 1907, when Freeda Schneider died, leaving as her heirs at law her father, Fred M. Schneider, and her mother, Tillie Schneider, the defendant herein.
After Freeda’s death, he continued to pay one-half of the income to Clarence Stull, and paid the other one-half to himself, claiming it in his own right. The amount which he so appropriated prior to his death was $2,500. On September 14, 1908, he made a report, showing that he was so applying the income. Ellen Stull, now Ellen Denton, filed exceptions to this report, claiming that he had no right to apply any of the income of the property to his own use, and asking for his removal. At the hearing upon these exceptions, she abandoned the demand for the removal of Fred M. Schneider as executor. No formal judgment was ever entered on these objections, nor any formal decree made construing the will or adjudicating the rights of the beneficiaries thereunder, the court then intimating that, as the objections involved a
In May, 1911, Fred M. Schneider died, and Ellen Denton was appointed administratrix de bonis non with the will annexed, of the estate of Daniel Schneider, deceased. She qualified and has ever since acted in that capacity. There has been no final settlement and decree of distribution of the estate. Since her appointment, she has, from time to time, made reports, but in none of these has she included the claim here, in question as an asset of the estate. On the death of Fred M. Schneider, his will was admitted to probate and the defendant, Tillie Schneider, was appointed executrix. Ellen Denton thereupon presented this claim on behalf of the estate of Daniel Schneider, deceased, for the sum of $2,500 against the estate of Fred M. Schneider. The defendant, as executrix of that estate, refused to allow the claim, and this suit was instituted. The cause was tried to the court without a jury. The action was dismissed. The plaintiff appealed.
Two questions are presented: (a) Did the bequest of the income in trust to the use and benefit of Clarence Stull and Freeda Schneider lapse as to the share of Freeda Schneider on her death, and thereafter pass under the third clause of the will, or did it survive for the benefit of her father, Fred M. Schneider, during the life and minority of Clarence Stull? (b) Has the appellant, as administratrix de bonis non, such an interest as will enable her to maintain this action in that capacity ?
(a) It is a universal rule that, in construing a will, the courts must seek for and give effect to the testator’s intention, if lawful. Herzog v. Title Guarantee & Trust Co., 177 N. Y. 86, 69 N. E. 283, 67 L. R. A. 146. The rule is also universal that the testator’s intention must be sought first of all in the will itself and that the intention which controls is that which is positive and direct; not that which is negative or inferential. Peck v. Peck, 76 Wash. 548, 137 Pac. 137; McCullough v Lawman, 38 Wash. 227, 80 Pac. 441.
The respondent seeks to raise an ambiguity and to create an inference contrary to the express terms of the will from
The first claim is answered by the simple fact that the testator did not divide the objects of his bounty into classes. Every gift made by the will was expressly to an individual by name. As held in Bill v. Payne, 62 Conn. 140, 25 Atl. 354, the legatees being named as individuals and standing in different relations to the testator could not be regarded as taking as a class. The intention to create separate classes was not only not expressed, but was negatived by the failure to provide for any survivorship to any one of any bequest on the death of any beneficiary. With the contingency of Freeda’s death presently in mind and specifically under consideration, the testator made no provision that the bequest to her should survive her death. In the recent case of Peck v. Peck, supra, the question here involved, and on a state of facts fully as indicative of the creation of classes as those found here, was discussed and resolved, on a careful review of the authorities, contrary to the respondent’s contention here. In that case we said:
“Courts will not permit themselves to be enslaved by mere technical rules of construction, but there are certain broad canons of interpretation which have become so thoroughly established by judicial announcement that they may be said to have passed into the body of substantive, or at least definitive, law upon the subject, which the courts will not capriciously disregard.
“As defining a gift to a class, no rule has been more frequently announced, nor more universally adhered to than the following:
“ ‘In legal contemplation, a gift to a class is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at a future time, who are all to take in equal or in some other definite proportions,*513 the share of each being dependent for its amount upon the ultimate number.’ In re Kimberley’s Estate, 150 N. Y. 90, 44 N. E. 945.
“ ‘A number of persons are popularly said to form a class when they can be designated by some general name, as ‘children,’ ‘grandchildren,’ ‘nephews;’ but in legal language the question whether a gift is one to a class depends not upon these considerations, but upon the mode of gift itself, namely, that it is a gift of an aggregate sum to a body of persons uncertain in number at the time of the gift, to be ascertained at. a future time, and who are all to take in equal or in some other definite proportions, the share of each being dependent for its amount upon the ultimate number of persons.’ 1 Jarman,. Wills (6th ed., Bigelow), p. 262.
“This rule is announced in haec verba as a determinative principle in each of the following decisions, in which the exact question here involved was presented and decided adversely to the contention of the appellants here: In re Murphy’s Estate, 157 Cal. 63, 106 Pac. 230, 137 Am. St. 110; In re Russell, 168 N. Y. 169, 61 N. E. 166; Herzog v. Title Guarantee & Trust Co., supra; Dulaney v. Middleton, 72 Md. 67, 19 Atl. 146. See, also, 30 Am. & Eng. Ency. Law (2d ed.), p. 718; 40 Cyc. 1473.”
And again, we said:
“There is another general rule of construction which, under different forms of expression, has met an almost universal approval by the courts.
“ ‘Where there is a gift to a number of persons who are indicated by name, and also further described by reference to the class to which they belong, the gift is held prima facie to be a distributive gift and not a gift to a class.’ Page, Wills, § 543.
“See also, In re Hittell’s Estate, 141 Cal. 432, 75 Pac. 53; Kent v. Kent, 106 Va. 199, 55 S. E. 564; Moffett v. Elmendorf, 152 N. Y. 475, 46 N. E. 845, 57 Am. St. 529; Frost v. Courtis, 167 Mass. 251, 45 N. E. 687; Dildine v. Dildine, 32 N. J. Eq. 78, 80; In re Russell, and In re Murphy’s Estate, supra; Rood, Wills, p. 317, § 479; Remsen, Wills, p. 93; 30 Am. & Eng. Ency. Law (2d ed.), 718.”
The authorities cited by the respondent are not pertinent. In Dove v. Johnson, 141 Mass. 287, 5 N. E. 520, the gift in trust was “after taking out George’s share quarterly, yearly or oftener, to all my daughters in equal shares.”, “And the issue of any deceased daughter shall take the mother’s share.” This was, of course, held a gift to the daughters as a class and a gift to the issue of any deceased daughter of her share as a sub-class. No other construction was possible. In Hood v. Boardman, 148 Mass. 330, 19 N. E. 379, though the three grandchildren were designated by name, there was an express provision that the income should be divided among them or go to the survivor or survivors until the youngest arrived at the age of thirty years. In the case before us, there was no provision whatever for the survivorship as to Freeda’s share in case of her death. In Anderson v. Parsons, 4 Me. 486, the devise to two grandsons was construed as creating a common law joint tenancy and not an estate in common. The right of survivorship was accorded not because of the testator’s intention, but because it was an incident of common law
The claim that Fred M. Schneider took Freeda’s share of the income on her death as her representative is even less tenable. It is argued that the trust could not partially terminate at Freeda’s death, but this overlooks the fact that there is no provision for any continuance of the trust after Freeda’s death except the provision that Clarence Stull shall continue to receive his undivided one-half of the rents, issues and profits of the real estate until he shall attain the age of majority.
It is further suggested that the will must, if possible, be given effect so as to dispose of all of the testator’s property; that since the law favors the vesting of estates, and presumes an intention on the testator’s part to die intestate as to no part of his estate, therefore, the trust for Freeda’s benefit survived to her father. There is no force in this claim, since the will by its express terms, leaves the testator intestate as to nothing or upon any contingency. The third clause of the will vested' the entire estate (income and principal) in Fred M. Schneider and Ellen Stull in undivided halves, share and share alike, subject only to the trusts provided for. The very terms of the third clause prevented the supposed partial intestacy
“It frequently happens that legatees die during the lifetime of the testator. The testatrix could have provided for such a contingency by giving it to the survivors, or to other parties. She did neither. There is, therefore, some presumption that she intended that the law should settle the matter.”
The further contention that Fred M. Schneider took as heir at law of his daughter, Freeda, is wholly lacking in support. The provision for the minors was a bequest, not a devise. McCullough v. Lawman, supra. It was a provision for an income to each beneficiary of the trust to be paid from the whole income of the estate during his or her life, and minority. In such a case, no freehold passes to the beneficiary or annuitant; no interest in the land from which the income is derived; no estate of inheritance in anything. De Haven v. Shermam, 131 Ill. 115, 22 N. E. 711, 6 L. R. A. 745.
In Stanwood v. Stanwood, 179 Mass. 223, 60 N. E. 584, which is typical of the authorities cited by the respondent in this connection, the will created a fund to be held in trust expressly to- continue for the term of twenty years, the trustee to pay the income to the named children of the testatrix, “and at the termination of said twenty years to divide the property, real and personal, held by the trustee . equally among my said children and their respective heirs
In any view of the case, the will, by its express terms, gave to Fred M. Schneider and Ellen Stull, in undivided halves, all of the income or any part of it not used in the fulfillment of the trusts provided for, whether by reason of the partial or entire lapse of these trusts by reason of the death of either or both of the beneficiaries of the trusts. Any other construction would be to rewrite, rather than construe, the will.
(b) Can the administratrix de bonis non maintain this action? If she cannot the action, must be dismissed. She sued only in that capacity. The question is a new one in this state and requires consideration at some length. It is squarely presented and must be met. Under the rule at common law, she could not, since at common law the administrator de bonis non was only entitled to recover from the personal representatives of a deceased former administrator or executor property remaining in specie, i. e., in the form in which it existed at the death of the deceased, and capable of identification as the property of the first deceased. Reed v. Hume, 25 Utah 248, 70 Pac. 998; Parker v. Stevens, 61 N. J. Eq. 163, 47 Atl. 573;
. Originally the right to administer was a prerogative of the crown. This right was afterwards transferred to the church and exercised through the prelates. The prelates were accountable only to God. and their own consciences. They could, at will, devote the goods of an intestate to pious uses. When, by reason of prélatical abuses, the right to administer was, by statute, transferred to the next of kin of
We have adverted to the ancient basis of this doctrine merely to show its extreme technicality and its apparent lack of applicability to present day conditions. Has this rule been changed by statute in this state? The sections of our statute which we deem directly pertinent are as follows, the citations being to section number of Rem. & Bal. Code:
“§ 1430. If any executor or administrator resign, or his letters be revoked, or he die, he or his representatives shall account for, pay, and deliver to his successor, or to the surviving or remaining executor or administrator, all money and property of every kind, and all rights, credits, deeds, evidences of debt, and papers of every kind of the deceased, at such time and in such manner as the court shall order on final settlement with such executor or administrator, or his legal representatives.”
“§ 1431. The succeeding administrator, or remaining executor or administrator, may proceed by law against any delinquent former executor or administrator, or his personal*519 representatives, or the sureties of either, or against any other person possessed of any part of the estate.”
“§ 1538. Any administrator may, in his own name, for the use and benefit of all parties interested in the estate, maintain actions on the bond of an executor or of any former administrator of the same estate.”
In State v. Rottaken, supra, chiefly relied upon by the respondent as construing statutes (Gautt’s Digest, §§ 44, 45) very like our §§ 1430 and 1431, above quoted, the supreme court of Arkansas held that an administrator de bonis non could not maintain an action against a former administrator or executor of the same estate for waste or conversion, that the statute did not supersede the common law rule and that the action could only be maintained by the creditors, legatees or distributees. This, however, as shown by the opinion, was largely because another section of the statutes of that state (Gautt’s Digest, § 191) authorized only “a legatee, distributee, creditor, or other person interested” to sue in the name of the estate on the bond of any executor or administrator for mismanagement, waste, or other breach of the conditions of such bond. In this state we have no such statute. On the contrary, our statute, § 1538, above quoted, expressly authorizes any administrator to sue in Ms own name for the benefit of all parties interested in the estate on the bond of an executor or of any former administrator of the same estate. This section authorizes such an action for any breach of the bond, and conversion is clearly such a breach. Palmer v. Pollock, 26 Minn. 433, 4 N. W. 1113. It would be most incongruous to permit an action against the bondsman which could not be maintained by the same plaintiff against his principal or against his principal’s estate. The obvious purpose of the statute is to avoid a multiplicity of suits, since there might be many heirs or legatees, but it is general in its term's, and must, be held to . apply in all cases. In view of .this positive and unequivocal statutory authority of a second administrator to sue, for the benefit of all persons
The supreme court of Georgia has construed a statute of that state, in essential particulars the same as Rem. & Bal. Code, § 1430, above quoted, as giving to> the administrator de bonis non the right to sue the administrator of a former executor of the same estate to compel an accounting for the proceeds of property of the estate sold by the deceased administrator, and converted into cash. Knight v. Lasseter, 16 Ga. 151. Moreover, authority is not wanting that moneys coming into the hands of the first administrator as proceeds of the estate, though not assets received in specie, are still assets in such form as to be traced and, therefore, as between such first administrator and the administrator de bonis non, belong to the latter and may be recovered at his suit. Marvel v. Babbitt, 143 Mass. 226, 9 N. E. 566; Balch v. Hooper, 32 Minn. 158, 20 N. W. 124. We have examined all authorities cited by respondent, but shall not review them, since it is admitted that the Arkansas decision above reviewed is more nearly applicable to our statute than any of the other decisions cited.
We do not hold that creditors, legatees, or distributees may not maintain such actions in their own names as they could at common law. That question is not before us. After distribution of the estate, of course, they alone can sue. Griffin v. Warburton, 23 Wash. 231, 62 Pac. 765.
There is no merit in the plea of res judicata. The court, in probate, never passed upon Ellen Denton’s objections to the appropriation of this money by the former executor. Nor do we find any merit in the claim of estoppel. Ellen Denton was justified in not charging herself as administratrix de bonis non with this claim so long as the money was withheld
Though we hold that the appellant may maintain this action, it does not follow that she may recover the full sum of $2,500. It was admitted in argument that all debts of the estate have been paid. Fred M. Schneider had the right to one-half of this sum. His estate will not be required to repay it merely to subject it to the cost of re-administration.
The judgment is reversed, and the cause is remanded with directions to enter judgment in favor of the appellant for $1,250, with interest from the date of the presentation of her claim to the respondent and for costs.
Crow, C. J., Main, and Gose, JJ., concur.
Concurrence Opinion
(concurring)—As to the second proposition discussed by Judge Ellis, while it may be that the common law rule has been enlarged by our statute, it was unnecessary to discuss the question at length or to so hold in this case. The estate had been fully administered. The remedy should have been by a straight action at law. A resort to the circuitous method pursued in the case at bar, with the attendant expense of an unnecessary administration de bonis non tending to the diminution of the estate, should not be encouraged. It would have been better to hold to this doctrine, and to have reserved our discussion of the right of an administrator de bonis non to sue, until a case involving that question was really before us. The conclusion of the majority is in harmony with my views; for, after all, the court comes down to the very simple proposition—and it is the only thing involved in this case outside of the construction of the will—and directs that a judgment be entered for a one-half of the income, with interests and costs. I understand that the costs of the unnecessary administration will eventually be put upon plaintiff, and for that reason I concur in the result announced by the majority.