Davis v. Brown

• Decision Date: 09 August 1920
• Docket Number: 15893.
• Citation: 191 P. 1098,112 Wash. 121
• Court: Washington Supreme Court
• Parties: DAVIS et al. v. BROWN et al.

191 P. 1098

112 Wash. 121

DAVIS et al. v. BROWN et al.

No. 15893.

Supreme Court of Washington

August 9, 1920

Department 2.

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

Action by Margaret Smith Davis and others against Mrs. Abner Brown and others, for the construction of the will of John Davis deceased. From a decree construing the will adversely to their contentions, the plaintiffs appeal. Affirmed.

Weter & Roberts, of Seattle, for appellants.

Edgar L. Crider, of Seattle, for respondents.

TOLMAN J.

Appellants plaintiffs below, as executors and trustees under the will of John Davis, deceased, brought this action for the purpose of obtaining a construction of the will, and directions as to their duties thereunder, making all persons interested parties defendant.

The facts, which are not in dispute, are as follows: John Davis died in King county in November, 1917, leaving a last will and testament, which was admitted to probate by the Superior Court for King county on December 6, following. The will reads:

'In the name of God amen:

'I, John Davis, of the city of Seattle, state of Washington, being over the age of twenty-one years, and of sound mind, do hereby make, publish and declare this my last will and testament, hereby revoking all former wills heretofore by me at any time made.

'First. I hereby declare that my wife, Margaret Smith Davis, and I have entered into a written agreement, and have executed, acknowledged and delivered conveyances each to the other, whereby all property, real, mixed and personal, now standing in my name, and all which may hereinafter stand in my name, together with all incomes, rents, issues and profits therefrom, is and shall be my sole and separate property, and all property, real, mixed and personal now standing in the name of my wife, Margaret Smith Davis, and all which may hereafter stand in her name, together with all income, rents issues and profits therefrom, is and shall be her sole and separate property.

'Second. To my wife, Margaret Smith Davis, I give and devise an undivided one-half interest to the forty-acre tract in section twenty-five (25) township twenty-six (26) north range three (3) east, which forty-acre tract was owned by my wife's father and myself as tenants in common.

'I also give and bequeath to my wife all household furniture, pictures, silverware and housefurnishings of every character and description whatsoever, for her sole and separate use and benefit absolutely and forever.

'Third. For a period of fifteen (15) years from and after my death I give, devise and bequeath the income from all of the rest, residue and remainder of the property now owned by me, and all which I may at any time hereafter acquire, to my trustees hereinafter named, and their successors in trust, for the following uses and purposes, and for the benefit of the following named persons:

'1. In trust to receive such income and to pay therefrom the sum of one hundred dollars ($100.00) per month to my mother, Mary Ryan, of Oakland, California, during the full term of her natural life;

'2. From the monthly income remaining after the monthly payment to my mother of one hundred dollars, I will and direct my trustees to pay to Mrs. Blanche Smith and to Miss Marjorie Thomas, both of Seattle, monthly, the sum of fifty dolars ($50.00) each, for the period of ten years from and after my death;

'3. The income remaining after the payments hereinbefore mentioned shall be equally divided between my son John Davis, Junior, and my sisters, Mrs. Abner Brown of Seattle, and Mrs. Jennie Quiner of Richland, Washington, and upon the expiration of such ten years the income from my estate, after paying to my mother the monthly sum of one hundred dollars, as hereinbefore provided, shall be equally divided between and paid monthly to my son John Davis, Junior, and my two sisters hereinbefore named, and their survivors or survivor, until the expiration of fifteen years from my death, at which time the principal and income of my estate, subject to the monthly payment of one hundred dollars to my mother, if she be then living, shall be equally divided between and paid over to my son John Davis, Junior, and my two sisters hereinbefore named; and in case of the death of either my son or my two sisters prior to such time, my trustees shall divide equally between and pay over to the survivors or survivor of my son and my two sisters hereinbefore named, the principal of such estate upon the expiration of such time.

'Fourth. Subject to the foregoing provisions, I give, devise and bequeath the rest, residue and remainder of my estate to my trustees hereinafter named, and their successors in trust, to hold and conserve the principal of my estate for the use and benefit of my son John Davis, Junior, and my two sisters, Mrs. Abner Brown and Mrs. Jennie Quiner, for the period of fifteen years from my death, and upon the expiration of such period to divide, and pay over and deliver to my son and my two sisters, or to the survivor or survivors of the three, the principal of my estate, absolutely and forever, it being my intention that in case of the death of any one of the three prior to the expiration of such fifteen years, such principal shall be divided between the survivors or survivor of them who shall be living at the expiration of such period, and that no descendant of either one of the three shall be entitled, under this will, to the share of the parent.

'Fifth. I hereby appoint as trustees under this will, my wife, Margaret Smith Davis, Abner Brown, William E. Best, Langdon C. Henry and James B. Howe, all of Seattle, giving and granting unto a majority of such trustees, and their successors, the right and authority, by an instrument in writing signed by such majority and filed in the office of the clerk of the superior court of the state of Washington for King county, to appoint a successor to any one of the trustees herein named who shall not qualify, or who, qualifying, shall thereafter resign or die.

'Sixth. I also authorize and empower my wife, Margaret Smith Davis, with the consent of three of the other trustees, to sell and dispose of any portion of the principal of my estate, upon such terms and conditions and for such price as she and such three trustees may deem advisable, and without obtaining authority from any court or judge so to do, and in such case the purchaser, after paying the purchase price, shall not be bound to see to the application of the proceeds of such sale.

'Seventh. I appoint my wife, Margaret Smith Davis, guardian of the person and estate of my son John Davis, Junior.

'Eighth. I hereby nominate, constitute and appoint my wife, Margaret Smith Davis, executrix, and Abner Brown, William E. Best, Langdon C. Henry and James B. Howe, executors of this my last will and testament. In case any one or more of them shall not qualify, or, if after qualifying, shall die or resign, those qualifying or surviving, as the case may be, shall have all the powers which all of them would have had if all had qualified, and shall settle my estate and deliver the same to my trustees hereinbefore named. I will and direct that my estate be settled in the manner provided in this my last will and testament; that no bond or bonds shall be required of my trustees or any of them, or any successor of any one of them, nor shall any bond or bonds be required of my executrix or of my executors, or either of them; that neither letters testamentary nor of administration shall be required of my executrix or of my executors, or either of them, and it shall not be necessary for them or either of them to take out letters testamentary or of administration, but they shall have this my last will and testament duly probated and shall file a true inventory of all of my property in the manner required by existing laws, and after the probate of this will and the filing of such inventory, and the obtaining of a decree of solvency, my estate shall be managed by my said executrix and executors until my debts be paid, if any shall exist at the time of my death, and

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