Collins v. Collins

• Decision Date: 06 June 1929
• Docket Number: 21325.
• Citation: 152 Wash. 499,278 P. 186
• Court: Washington Supreme Court
• Parties: COLLINS et al. v. COLLINS et al.

278 P. 186

152 Wash. 499

COLLINS et al. v. COLLINS et al.

No. 21325.

Supreme Court of Washington, En Banc.

June 6, 1929

Appeal from Superior Court, King County; Calvin S. Hall, Judge.

Suit by Angie B. Collins and others, as executors and trustees under the last will and testament of John Collins, deceased against Angie B. Collins and others, for a construction of the will. From the judgment, defendant Emma Collins Downey appeals. Affirmed.

James B. Howe and Farrell, Meier & Meagher, all of Seattle, for appellant.

Chadwick McMicken, Ramsey & Rupp and Donworth, Todd & Holman, all of Seattle, for respondents.

MAIN J.

This action was brought to construe the last will and testament of John Collins, deceased. The plaintiffs were the executors and trustees named in the will. The defendants were the beneficiaries. The trial was to the court without a jury, and resulted in findings of fact, conclusions of law, and a judgment construing the will, from which the defendant Emma Collins Downey appeals.

John Collins died April 23, 1903. His last will was executed December 23, 1901, and after his death way duly admitted to probate. The respondent Angie B. Collins, the widow of the deceased, qualified as one of the executors and trustees under the will, as did also the other persons named therein. The part of the will which is here material is as follows:

'Fourth. I give devise and bequeath unto my executors, herein also designated as my trustees, and to the survivor or survivors and successor or successors of them, all my property, both real and personal, of every nature, kind and character and wherever situated and including all that I may hereafter acquired in trust nevertheless and only in trust to and for the following uses and purposes and subject to the limitations hereinafter stated, that is to say: * * *

'(b) My said trustees shall hold and retain Lots One (1), Two (2), Three (3) and Four (4) (including alley) in Block One (1) of C. D. Boren and A. A. Denny's plat of the town (now city) of Seattle, known as the 'Occidental Block' and lots five (5), six (6), seven (7) and eight (8) in Block one hundred and one (101) of Terry's Second Addition to the City of Seattle, on which my home is situated, all in King County, State of Washington, together with all household goods, clothing, furniture, pictures, silverware, glassware, books and all other furnishings and like personal property of every kind in my said home and premises until the twenty-ninth day of October, A. D. 1913, the date of which my youngest daughter Catherine Collins will have arrived at the age of eighteen years, during which period my said home together with all said personal property therein shall be maintained as a home for my wife and children to be used by them without any charge being made against them in favor of my estate or at all for such use and occupation.

'(c) I hereby direct that my said trustees shall, as soon after my death as the same can be conveniently and advantageously done, sell and dispose of all my other real and personal property of every kind and character and wherever situated and convert the same into cash, and from the proceeds derived from such sales and the income of said property up to date of sale, pay all my just debts and pay off and discharge all encumbrances upon my said home and upon said Block one (1), C. D. Boren and A. A. Denny's plat of the town (now city) of Seattle, and if any money remains thereafter from said sales and income from said property, to pay the same to my wife Angie B. Collins, and to my children, Emma L. Collins, Edana Sophia Collins, John Francis Collins, Bertran Edward Collins and Catherine Collins in equal shares, one-sixth part thereof to each.

'(d) My said trustees shall manage said Block one (1) of C. D. Boren and A. A. Denny's Plat of the Town (now city) of Seattle to the best interests of my estate and collect from lessees the rents, issues and profits thereof up to the said twenty-ninth day of October, A. D. 1913, and shall apply such rents, issues and profits as follows, to-wit: * * * Third, in maintaining and keeping said Block One (1) of C. D. Boren and A. A. Denny's Plat of the Town (now city) of Seattle and my said home property in good condition and repair. * * *

'Fifth. I further expressly direct that when my daughter Catherine Collins shall have arrived at the age of eighteen years, to-wit: on the twenty-ninth day of October, 1913, my said trustees shall transfer, convey, pay over and deliver all my estate, both real and personal, of every nature and kind and wherever situated, the remaining in their hands, unto my said wife, Angie B. Collins, and my said Children, Emma L. Collins, Edana Sophia Collins, John Francis Collins, Edward Bertran Collins and Catherine Collins, in equal shares, to-wit: One undivided one-sixth part thereof to each. * * *

'Sixth. Should there from any cause be insufficient funds in the hands of my said trustees to enable them to pay and discharge my said just debts and incumbrances and to make the other payments above directed to be made then and only in such case I authorize and empower my said trustees to sell or incumber said Block one of C. D. Boren and A. A. Denny's plat of the town (now city) of Seattle as they in their judgment shall consider for the best interests of my estate. * * *'

The respondent Angie B. Collins and John Collins were married in the year 1877. All the surviving children were the result of this marriage, except the appellant Emma Collins Downey, who was the daughter of the deceased by a former marriage. The property described in the will as the Occidental block, now known as the Seattle Hotel property, was acquired by the deceased partly before his marriage to Angie B. Collins and partly after the marriage. April 7, 1903, after the execution of the will, Angie B. Collins by quitclaim deed conveyed all of her interest in the above-mentioned property to her husband.

April 9, 1903, or two days later, John Collins by warranty deed conveyed an undivided one-half interest in that property to Angie B. Collins, his wife, in consideration of $10 and love and affection. The will provides that the estate shall be closed and distributed October 29, 1913, when the youngest child became of age. This was not done, partly because the distributees could not agree and probably in part because all the parties thought it unwise to close and distribute the estate and segregate their interests at that time. In 1925 the executors and trustees brought this action for the purpose above stated.

The controversy is between Emma Collins Downey and the respondent Angie B. Collins, the widow. The appellant claims that she is entitled to a one-sixth interest in the property involved while Mrs. Collins claims one half of the property in her own right and that Mrs. Downey is only entitled to a one-sixth interest in the other half. The question is whether Mrs. Collins was required to elect whether she would take...