Denton v. Schneider

• Decision Date: 22 July 1914
• Docket Number: 11806.
• Citation: 142 P. 9,80 Wash. 506
• Parties: DENTON v. SCHNEIDER.
• Court: Washington Supreme Court

142 P. 9

80 Wash. 506

DENTON v. SCHNEIDER.

No. 11806.

Supreme Court of Washington

July 22, 1914

Department 1. Appeal from Superior Court, King County; Everett Smith Judge.

Action by Ellen Denton, as administratrix de bonis non, with the will annexed, of Daniel Schneider, deceased, against Tillie Schneider, as executrix of Frederic M. Scheider, deceased. Judgment for defendant, and plaintiff appeals. Reversed and remanded, with directions.

Shorett McLaren & Shorett and F. A. Gilman, all of Seattle, for appellant.

Bausman Kelleher, Oldham & Goodale, of Seattle, for respondent.

ELLIS J.

The plaintiff, as administratrix de bonis non of the estate of Daniel Schneider, deceased, brought this action against the executrix of the former executor of that estate for the sum of $2,500, based upon a rejected claim against the estate of Fred M. Schneider, the former executor. On September 6, 1901, Daniel Schneider died, leaving a will, the clauses of which material here are as follows:

'Third. I hereby give, bequeath and devise to Fred M. Schneider, my son, of King county, Washington, and to Ellen Stull, my daughter, of the state of California, all my property, and estate, of every nature whatsoever, wheresoever situate, both real, personal and mixed, in undivided halves, share and share alike; subject, however, to the fulfillment of the uses and trusts hereinafter provided for.'

'Fifth. I hereby direct that my said executor shall receive all the rents, profits, issues and incomes of all of my said real estate, and that he shall use and dispose of the same for the use and benefit of Clarence Stull, aged eleven years, son of the said Ellen Stull, and also for the use and benefit of Freeda Schneider, aged five years, daughter of the said Fred M. Schneider, during the whole of the period until the said Freeda Schneider shall have attained the age of majority, this trust to terminate at that date or when said Clarence Stull shall have attained the age of majority, in the event of the death of said Freeda Schneider prior to that time, in which event the said Clarence Stull shall continue to receive his undivided one-half of said rents, issues and profits of said real estate, until he shall have attained the age of majority; the trust hereby created shall also terminate in the event of the death of both said Clarence Stull and said Freeda Schneider before either of them shall have attained the age of majority; said rents, issues and profits to be divided equally, when received, and paid by my said executor to the respective guardians of the persons and estates of said minor children, share and share alike, as often as the same shall be received, but not oftener than once in each calendar month.'

Fred M. Schneider and Ellen Stull were all of the children of Daniel Schneider. Fred M. Schneider was named as executor, qualified as such on September 17, 1901, and continued so to act until his death. He collected the income and paid one-half to Freeda Schneider and one-half to Clarence Stull, through their respective guardians, as directed by the will, until February, 1907, when Freeda Schneider died, leaving as her heirs at law her father, Fred M. Schneider, and her mother, Tillie Schneider, the defendant herein. After Freeda's death, he continued to pay one-half of the income to Clarence Stull and paid the other one-half to himself, claiming it in his own right. The amount which he so appropriated prior to his death was $2,500. On September 14, 1908, he made a report, showing that he was so applying the income. Ellen Stull, now Ellen Denton, filed exceptions to this report, claiming that he had no right to apply any of the income of the property to his own use, and asking for his removal. At the hearing upon these exceptions, she abandoned the demand for the removal of Fred M. Schneider as executor. No formal judgment was ever entered on these objections, nor any formal decree made, construing the will or adjudicating the rights of the beneficiaries thereunder; the court then intimating that, as the objections involved a construction of the will, the proper time to raise them was on the final accounting. In May, 1911, Fred M. Schneider died, and Ellen Denton was appointed administratrix de bonis non, with the will annexed, of the estate of Daniel Schneider, deceased. She qualified and has ever since acted in that capacity. There has been no final settlement and decree of distribution of the estate. Since her appointment, she has, from time to time, made reports, but in none of these has she included the claim here in question as an asset of the estate. On the death of Fred M. Schneider, his will was admitted to probate, and the defendant, Tillie Schneider, was appointed executrix. Ellen Denton thereupon presented this claim on behalf of the estate of Daniel Schneider, deceased, for the sum of $2,500 against the estate of Fred M. Schneider. The defendant, as executrix of that estate, refused to allow the claim, and this suit was instituted. The cause was tried to the court without a jury. The action was dismissed. The plaintiff appealed.

Two questions are presented: (a) Did the bequest of the income in trust to the use and benefit of Clarence Stull and Freeda Schneider lapse as to the share of Freeda Schneider on her death, and thereafter pass under the third clause of the will, or did it survive for the benefit of her father, Fred M. Schneider, during the life and minority of Clarence Stull? (b) Has the appellant, as administratrix de bonis non, such an interest as will enable her to maintain this action in that capacity?

(a) It is a universal rule that, in construing a will, the courts must seek for and give effect to the testator's intention, if lawful. Herzog v. Title Guarantee & Trust Co., 177 N.Y. 86, 69 N.E. 283, 67 L. R. A. 146. The rule is also universal that the testator's intention must be sought first of all in the will itself, and that the intention which controls is that which is positive and direct, not that which is negative or inferential. Peck v. Peck, 76 Wash. 548, 137 P. 137; McCullough v. Lauman, 38 Wash. 227, 80 P. 441.

An examination of the will here involved leaves no doubt as to the testator's intention; no room for a resort to anything aliunde the will itself to determine that intention. By the third clause of the will, the entire estate was bequeathed and devised to the testator's son and daughter, Fred M. Schneider and Ellen Stull, 'in undivided halves, share and share alike, subject, however, to the fulfillment of the uses and trusts hereinafter provided for.' This language is unambiguous. Clearly both halves were subject to the fulfillment of all trusts. This clause standing alone, evinces no intention that the income of the separate halves is to be subjected to the fulfillment of any separate uses or trusts. If, therefore, any such intention is to be found in the will itself, or any ambiguity in the intention, it must be found in the fifth clause, defining the only uses and trusts provided for in the will. In that clause we find the whole income bequeathed in trust to the use and benefit of Clarence Stull, aged 11 years, and Freeda Schneider, aged 5 years, to be divided equally between them, share and share alike, with express and particular provisions for every possible contingency which can in any way affect these two minor beneficiaries personally, for whose benefit alone this trust is declared. It is declared that this use and benefit shall continue: First, during the whole period until Freeda shall have attained the age of majority; second, in case of Freeda's death before her majority, Clarence shall continue to receive his undivided one-half until he shall have attained his majority; third, the trust shall terminate in the event of the death of both Clarence and Freeda before either of them shall have attained the age of majority. These are all of the provisions creating the trust, defining the trust, continuing the trust, and terminating the trust. The intention is as clear as words can make it that the trust is for the benefit of these two minors only. The intention is also clear that the trust shall terminate absolutely as to the share of Freeda upon her death, since, with that contingency in his mind and under consideration, the testator did notprovide for the survival of the trust as to her share upon her death, but provided for the continuance of the trust only as to the share of Clarence and made no provision whatever as to the disposition of her one-half of the income on the happening of that contingency, except the provision found in the third clause of the will which gives all of the estate in undivided halves, subject only to the trusts 'provided for,' to Fred M. Schneider and Ellen Stull. On the death of Freeda, but one trust was provided for. That trust was the trust in favor of Clarence, and the devise to Fred M. Schneider and Ellen Stull in the third clause of the will in its entirety was expressly subject to that trust to the same extent as it would have been to both trusts had Freeda survived, since it is so subjected by the same words. No ambiguity can be found either in the third clause or the fifth clause of the will, whether taken separately or in conjunction. Nor can we find any ambiguity in them or either of them, when applied to the subject-matter. The third clause applies to the whole estate, except as limited by the fifth clause. The fifth clause applies to the whole income, except as limited by the death of Freeda. Neither is there any ambiguity when the terms of these two clauses are applied to the beneficiaries. All beneficiaries are named by name. What each shall receive is expressed in terms. Freeda shall receive one-half of the income until she attains her majority...