Bank of California, Nat. Ass'n of Seattle v. Turner

• Decision Date: 13 January 1938
• Docket Number: 26828.
• Court: Washington Supreme Court
• Parties: BANK OF CALIFORNIA, National Ass'n, OF SEATTLE, v. TURNER et al.

74 P.2d 987

193 Wash. 270

BANK OF CALIFORNIA, National Ass'n, OF SEATTLE, v. TURNER et al.

No. 26828.

Supreme Court of Washington

January 13, 1938

Department 1.

Appeal from Superior Court, King County; Hugh C. Todd, Judge.

Action to construe the will of Amanda Wasesha, deceased, by her executor, the Bank of California, National Association, of Seattle,, wash., against Mrs. James C. Turner and others. From an adverse judgment, Rev. Jack C. Nelson, Pentecostal Mission, and Rev. Jacob C. Nelson, Pentecostal Faith Mission appeal.

Affirmed.

Harold A. Seering, Eli E. Dorsey, Hartman, Hartman, Simon & Coles and Wingate & Suffel, all of Settle, for appellants.

Wright & Wright, of Seattle, for respondent Bank of California.

Wm. V Cowan, of Kirkland, for respondents Jori.

HOLCOMB, Justice.

This appeal involves an action brought by an executor for the construction of the last will and testament of Amanda Wasesha.

The testatrix died on January 5, 1936, leaving an estate consisting of real and personal property. Decedent's will was executed on December 16, 1933, and a codicil was attached thereto dated July 2, 1935. The will was duly admitted to probate. By the terms of the will respondent was named executor, and a number of specific bequests were made to relatives, some of whom are related by consanguinity, and others by affinity. Other bequests were made to individuals who are strangers to the blood and to affinity. A number of bequests were also made to certain religious and charitable institutions.

Paragraph 28 of the will provides:

'It is my wish and desire that in case there is not enough money or property to pay all of the bequests made in this my Last Will that my executor pay first the bequests made to relatives, and thereafter any estate remaining be divided pro rata among the other legatees.' (Italics ours.)

Respondent alleges in its complaint that there is not sufficient money to be realized from the estate to pay in full all of the bequests made by the deceased, but there is a difference of opinion in regard to whether the term 'relatives,' as used in the will, embraces only relatives by consanguinity, or all relatives by affinity as well as consanguinity. Therefore respondents prayed that paragraph 28 of the will be construed so that the proper distribution of the estate might be made.

The trial court held that under paragraph 28 of the will the testatrix meant to include all relatives, both by affinity and consanguinity, and therefore they should be considered as one class and should be paid first, and any balance remaining undistributed should be pro rated among the other devisees.

Error is assigned in holding that it was the intent and purpose of the testatrix to include relatives by affinity and in denying appellant's motion for a new trial, or, in the alternative, for judgment notwithstanding the court's decree.

The word 'relatives' is a very indefinite word, and in a broad sense includes both relations by affinity as well as by consanguinity. It is conceivable that the interest of the relative by affinity may be greater than that of the relative by blood. Schutte v. Douglass, 90 Conn. 529, 97 A. 906. The general rule is well settled to the effect that the word 'relatives' when used in wills is ordinarily construed as including relatives by consanguinity, and excluding relatives by affinity, unless a contrary intention is manifested. 28 R.C.L. 256, § 229.

'The word 'relatives' has two meanings: (1) An enlarged meaning which includes all persons who are related in any way, by consanguinity or affinity, lineal and collateral relatives; (2) a restricted meaning which is confined to such relatives as are heirs, under the law of succession. It is the universal holding that, when used in a will, the word is presumed to mean relatives in the restricted sense, unless a contrary intention is apparent from the context of the will.' In re Bernheim's Estate, 82 Mont. 198, 266 P. 378, 382, 57 A.L.R. 1169.

Webster's New International Dictionary, 2d Ed., defines a 'relative' as follows:

'A person connected with another by blood or affinity; strictly, one allied by blood; a relation; a kinsman or kinswoman.'

When employed in their generic, as distinguished from their technical, sense, however, the words include those connected by affinity as well as consanguinity.' Wapello County v. Eikelberg, 140 Iowa 736, 117 N.W. 978, 979.

This dual meaning of the term 'relatives' has been recognized and those related by affinity have been treated as relatives when the testator intended to include them. Cleaver v. cleaver, 39 Wis. 96, 20 Am.Rep. 30; Annotation 57 A.L.R. 1180; Peter's Estate, 11 Phila., Pa., 85; Hoff's Appeal, 28 Pa. 51; Henderson v. Henderson, 77 N.J.Eq. 317, 77 A. 348; Marcus v. Leake, 4 Neb., Unof., 354, 94 N.W. 100; Esty v. Clark, 101 Mass. 36, 3 Am.Rep. 320; Bennett v. Van Riper, 47 N.J.Eq. 563, 22 A. 1055, 14 L.R.A. 342, 24 Am.St.Rep. 416; Lewis v. Mynatt, 105 Tenn. 508, 58 S.W. 857; Wapello County v. Eikelberg, 140 Iowa 736, 117 N.W. 978; Anderson v. Supreme Council, 69 N.J.Eq. 176, 60 A. 759; Schutte v. Douglass, supra; Gross v. Nickum, 34 Pa.Co.Ct.R. 498; In re Trickett's Estate, 197 Cal. 20, 239 P. 406.

Therefore it becomes material to ascertain the intention of the testator. This will should be construed so as to give effect to the intention of the testator, and, in ascertaining the meaning of the particular words, phrases, clauses, or paragraphs, the intention of the testator is to be determined from an examination of the entire instrument. 69 C.J. 104, §...