21 Wash. App. 382 | Wash. Ct. App. | 1978
— In 1955, when he made his will, Luther L. Harrison, the decedent, had been married three times. Of
The cause of the litigation is the fact that his then wife Louise did not predecease Luther, but rather she divorced and survived him. Luther Harrison never executed a new will. The will makes no provision in the event of such a divorce. Admittedly, under the statute, RCW 11.12.050,
Appellants rely on Peiffer v. Old Nat'l Bank & Union Trust Co., 166 Wash. 1, 6 P.2d 386 (1931). In that case the decedent also had children by two marriages. Katherine was the older child, and in his will the testator said that he expressly mentioned Katherine and made no devise or bequest to her in the will. He then gave it all to his wife Mabel, provided she would survive him and further provided that in the event that she did, he made no provision for his younger child, Albert. He further provided that in the event Mabel should not survive, then he gave all of his property to Albert. In that case as in this, Mabel survived but was divorced and the divorce, after the making of the will, operated to revoke the will as to the divorced spouse. Hence, the dispute was between the two children. It was urged by Katherine, of the first marriage, that since Mabel did not predecease her husband, which was a contingency under which Albert would take all of the estate, therefore the decedent was intestate and the property should be distributed in equal shares to the two children. In deciding the case, the court adverted to the general law that the intention of the testator must be determined at the time of the execution of the will. Construing all the provisions together, and when possible to sustain the right to
Paragraph 4 of that will provided in the event the estate all went to his wife Mabel, no provision was made for Albert for the reason that "his interest will be fully cared for by my beloved wife." (Italics ours.) The court found that the divorce did not annul the provision except as to the wife and did not annul the bequest to the son and the disinheritance of the daughter.
In this case, Constance Harrison, the respondent, relies on In re Estate of McLaughlin, 11 Wn. App. 320, 523 P.2d 437 (1974). In that case the decedent left all the property to his wife Ethel and provided that if she predeceased him, then it went to his stepson, Ethel's child by a previous marriage. Again the wife, at the time of the making of the will, did not predecease the testator; rather, she divorced him. Upon his death the decedent left no children, but rather a brother, sister, and a niece. The dispute, of course, was between them and the stepson who claimed the entire estate. The court, in reversing the trial court, held that since the stepson was not an heir of the decedent, that the conditional alternative bequest to the stepson failed because the condition (death of the wife) did not occur. Under the previously quoted statute the will was revoked as to the then wife, Ethel, and eliminated the stepson. The court stated that by the terms of the will he takes only if the ex-wife predeceased the decedent. Since the ex-wife survived the decedent, the bequest fails, leaving the decedent's estate to pass via the laws of intestate succession. In re Estate of McLaughlin, supra at 321.
In distinguishing that case from Peiffer v. Old Nat'l Bank & Union Trust Co., supra, McLaughlin stated that
In McLaughlin, the court was unable to perceive any such clear and unmistakable testamentary intent, that is to take care of the stepson, and was unable to determine that the testator's intent at the time of execution of the will was other than as expressed in the plain meaning of the language used. Hence, since his then wife, Ethel, did not predecease the decedent, which was the condition of the bequest to the stepson, the stepson took nothing, and the decedent died intestate.
We feel that the principles enunciated in the latter case control the disposition of this case. There was no suggestion in the will of Luther Harrison that he was specifically excluding the older child, Constance, from sharing in his estate. At the time of the execution he had but two children, Constance and Susan, and paragraph 4 of the will clearly referred to the fact that his wife would receive all of his estate and that he made no provision for the children (plural), which would be Constance and Susan, because they were the only ones living at that time. He stated he did so knowing that his "wife will adequately provide for them" (italics ours), again the plural pronoun, which could only refer to both Constance and Susan as well as other afterborn children.
At oral argument, appellants seek to attach significance to paragraph 5 of the will,
While this interpretation results in the decedent's intestacy as to the children, yet it is in harmony with his intent as expressed in various ways in the will to see that all of his children were adequately taken care of, even to the extent that all of the children, including Constance, would share equally in the proceeds of life insurance policies.
Finding no intent to disinherit Constance and finding that the operative clause of the will, namely, the .pre-death of his wife Louise, never occurred, then all of his children
Counsel for the respondent was appointed to represent the interest of Constance, the older child. He was given an attorney's fee by the trial court for his efforts on her behalf at the trial level. He seeks additional fees for his efforts on appeal. We grant this request.
Judgment is affirmed and the cause remanded for determination and award of attorney's fees on appeal.
Green and McInturff, JJ., concur.
RCW 11.12.050 reads as follows:
"If, after making any will, the testator shall marry and the spouse shall be living at the time of the death of the testator, such will shall be deemed revoked as to such spouse, unless provision shall have been made for such survivor by marriage settlement, or unless such survivor be provided for in the will or in such way mentioned therein as to show an intention not to make such provision, and no other evidence to rebut the presumption of revocation shall be received. A divorce, subsequent to the making of a will, shall revoke the will as to the divorced spouse."
"Fifth: I hereby appoint my wife the personal and legal guardian of my child, Susan Michel Harrison, now living, or any children hereafter born unto me, but in case of the death of my wife before me or before distribution has been had to her in due course of probate, then I direct that my father, George D. Harrison, be appointed the personal and legal guardian of the aforementioned child and of her respective entire interest, both legal and equitable, in this my estate. In the event my father and my wife both predecease me, I then direct that my sister, Maudie Poe, be appointed the personal and legal guardian of the aforementioned child and of her respective entire interest, both legal and equitable, in this my estate."