Brooks' Estate, In re

• Decision Date: 05 June 1978
• Docket Number: No. 5168-I,5168-I
• Citation: 20 Wn.App. 311,579 P.2d 1351
• Parties: In re the ESTATE of Eloise Lorraine BROOKS, Deceased. Tommy BROOKS, Respondent, v. Sharon MORTON, Appellant.
• Court: Washington Court of Appeals

Page 311

20 Wn.App. 311

579 P.2d 1351

In re the ESTATE of Eloise Lorraine BROOKS, Deceased.

Tommy BROOKS, Respondent, v. Sharon MORTON, Appellant.

No. 5168-I.

Court of Appeals of Washington,Division 1.

June 5, 1978.

Webster, Kroum & Bass, Gary F. Bass, Seattle, for appellant.

P. J. Sferra, Seattle, for respondent.

DORE, Judge.

This is an appeal from a King County Superior Court ruling that certain language in a will created a trust.

Eloise Brooks, a divorced woman, died September 21, 1974, survived by her two minor children. She left a will dated March 14, 1974 which named her sister, Sharon Morton, as executrix. The will left certain specific property to her two children and appointed Sharon Morton to be guardian and have actual custody of the children. Paragraph VI of the will provided:

I hereby give, devise, and bequeath unto my sister, Sharon Nelson Morton, all the rest, residue and the remainder of my estate, for her to use in her own discretion and in whatever manner she deems appropriate for the benefit of my children.

The will was admitted to probate October 11, 1974 and proceedings ensued normally until August 19, 1976 when the natural father moved, on behalf of the children, for an accounting of a trust allegedly created by paragraph VI. Although Sharon Morton contended that no trust had been created the court found

that all property passing under paragraph VI of (the will) is held in trust for the benefit of said minor children and further that there is a conflict of interest for the Executrix to serve also as Trustee . . .

Thereupon the court appointed a new trustee and ordered him to make an accounting.

It is well established that in construing a will a court must attempt to give effect to the intent of the testator. Matter of Griffen's Estate, 86 Wash.2d 223, 543 P.2d 245 (1975). The will should be construed as a whole. In re Estate of Price, 75 Wash.2d 884, 454 P.2d 411 (1969). Where there is room for construction, that meaning will be adopted which favors those who would inherit under the laws of intestacy, In re Estate of Price,supra; In re Lambell's Estate, 200 Wash. 220, 226, 93 P.2d 352 (1943), and a sole surviving natural heir who is a minor is favored. Cotton v. Bank of California, 145 Wash. 503, 261 P. 104 (1927).

Before a trust will be found to exist, there must be a clear manifestation of an intent to create a trust and not to do something else. Hoffman v. Tieton Methodist Church, 33 Wash.2d 716, 207 P.2d 699 (1949). A testamentary trust will not be declared, unless such a trust is clearly intended by the testator. In re King's Estate, 144 Wash. 281, 257 P. 848 (1927). It has generally been held that an imperative command to dispose of the property for the benefit of another is required to create a testamentary trust. In re Morton's Estate, 188 Wash. 206, 61 P.2d 1309. Precatory words are not enough to create a trust and if the grantee has discretion to use the property for herself the court will not find a trust. Lanigan v. Miles,102 Wash. 82, 172 P. 894 (1918).

The issue is whether Eloise Brooks manifested an intention to impose duties upon Sharon Morton which are enforceable in the courts. See Rest. (Second) Trusts, § 25. If so, there is a trust.

The language of paragraph VI which conveyed the estate to Sharon Morton "for her to use . . . for the benefit of my children" is strongly suggestive of a trust. Other language in the clause, however, suggests that Sharon Morton was to hold the property free and clear with the option to comply with the wish of the testator only if she desired to do so. When necessary, extrinsic circumstances may be considered as an aid in determining intention. In re Mac Adam's Estate, 45 Wash.2d 527, 531, 276 P.2d 729 (1954). In re Quick's Estate, 33 Wash.2d 568, 573, 206 P.2d 489 (1949). Restatement Second, Trusts § 25, comment b sets forth circumstances pertinent to this inquiry:

In determining the intention of the settlor the following circumstances among others are considered: (1) the imperative or precatory character of the words used; (2) the definiteness or indefiniteness of the property; (3) the definiteness or indefiniteness of the beneficiaries or of the extent of their interests; (4) the relations between the parties; (5) the financial situation of the parties; (6) the motives which may reasonably be supposed to have influenced the settlor in making the disposition; (7) whether the result reached by construing the transaction as a trust or not a trust would be such as a person in the situation of the settlor would naturally desire to produce.

In re Mac Adam's Estate, supra; In re Quick's Estate, supra.

Considering these circumstances along with the language of the will we believe that a trust was intended. The language "for her to use . . . for the benefit of my children" is more imperative...