7 Wash. 409 | Wash. | 1893
The opinion of the court was delivered by
The appellant asks a construction of the will of her husband, William C. Hill, deceased, as between her
The deceased left a will in which all of his property was devised to the appellant, no mention being made therein of any of his children. Certain of this property is community real property in this state. The will was executed December 17, 1888, and when found and offered for probate in 1890 there was also found, in a sealed envelope with it, a letter signed by the deceased, and dated December 26, 1888, which letter was addressed to appellant, and made certain recommendations to her with regard to the management of the property devised to her, and of the children, three out of nine of whom were named. The court below held, following the cases of Bower v. Bower, 5 Wash. 225 (31 Pac. Rep. 598), and Barnes v. Barker, 5 Wash. 390 (31 Pac. Rep. 976), that the deceased died intestate as to his children, and this appeal is from the construction thus given to the will.
Appellant submits two propositions—
1. Does the statute (Gen. Stat., § 1465), which was construed in the above cited cases, apply to community property? which we unhesitatingly answer in the affirmative. The only way in which a deceased person can dispose of property in this state is by will. The term ‘ ‘ testamentary disposition'' is used in both the law of the property rights of married persons (Code of 1881, §2411), and the law of descent of real property (Id., §3303; Gen. Stat., §1481), but the meaning is ‘ ‘ disposition by will. ’ ’ The very same statute, which used the words “testamentary disposition,” also used the word ‘ ‘ will ” in a negative way to convey the same meaning. Code, 1881, §2409. But, without this, the common usage the world over is to employ the words “will,” “testament,” and “last will and testament,” as exactly synonymous.
Again, the fact that during the life of the husband and wife
2. It is submitted that there is a difference between our statute, Gen. Stat., §1465, and that of any other state on this subject, which ought to cause a change in our former rulings excluding parol proof to show that a testator had provided for his children otherwise than by his will. The point made is a new one, and is based upon the language of the statute, which, at the vital portion, reads thus: “Every such testator, so far as he shall regard such child or children, or their descendants, not provided for, shall be deemed to die intestate, ’ ’ etc. The Oregon and Missouri statutes, which are otherwise like oui’s, omit the word “he.” Appellant’s contention is that the sense of our statute is: “Every such testator shall be deemed to die
The letter of the statute is appealed to and the rules of construction are invoked, and it is conceded that they must be given due force. But this word “he” has been in our statute for almost forty years, and it has never received the construction hero contended for. Whether it was ever before called to the attention of a court we are unable to say. It seems not to have been heretofore expressly passed upon by this court; but the statute has undoubtedly been under consideration by courts of the state and territory hundreds, if not thousands, of times, and vast property interests are held under it. In full view of the construction universally given to it, the legislature has frequently reenacted it, in h(bc verba, and we shall not now disturb that construction, especially to give it the absurd and alarming
Many other states had similar laws, the general purpose of which was to protect children from unjust omissions in the disposition of their parents’ estates. In some of these laws the right of the child to interfere was defeated by a showing that the omission was intentional, and the intention might be made to appear by evidence dehors the will. But the object of all such statutes was the same, and we believe that our own provision had the same inspiration. It is incredible that our legislature could have intended to introduce into the law of wills such a self-destroying and confusing element under the guise of a benevolent statute which had long been in operation in other states.
There are nine children interested in this estate, eight of whom are minors. They reside in the District of Columbia, know nothing of our law, and were all served by publication. If this estate were now distributed to the sole devisee, would they be estopped, upon their respectively coming of age, to show that their father at some time after the date of his will regarded them as unprovided for? And if not, must the matter be left open during the ten or fifteen years which must elapse before the youngest child arrives at majority? Facts which would fully justify the court in finding that the testator was wholly dissatisfied with his will and regarded all of his children as unprovided for may exist, may be easily provable, and may be known to the devisee; but the court is called upon to proceed without them, and with no power or means of calling for
But be these arguments good or bad, the long administration of the law as contended for by the respondents, and its evident purpose, constrain us to uphold the construction heretofore given it, and the judgment before us will, therefore, be affirmed.
Hoyt, Scott and Anders, JJ., concur.