Douglas' Estate, In re

• Decision Date: 07 January 1965
• Docket Number: No. 37349,37349
• Citation: 398 P.2d 7,65 Wn.2d 495
• Court: Washington Supreme Court
• Parties: In the Matter of the ESTATE of Roy H. DOUGLAS, Deceased. LaVerne S. SIVERSON, administrator de bonis non with the Will Annexed of the Estate of Roy H. Douglas, Deceased, Appellant, v. Helen June WALLACE, Executrix of the Estate of Maude Douglas, deceased, Respondent.

Page 495

65 Wn.2d 495

398 P.2d 7

In the Matter of the ESTATE of Roy H. DOUGLAS, Deceased.

LaVerne S. SIVERSON, administrator de bonis non with the

Will Annexed of the Estate of Roy H. Douglas, Deceased, Appellant, v. Helen June WALLACE, Executrix of the Estate of Maude

Douglas, deceased, Respondent.

No. 37349.

Supreme Court of Washington, Department 1.

Jan. 7, 1965.

Hennessey, Curran & Bentley, Harry E. Hennessey, Spokane, for appellant.

Woodworth & Shelledy, Patrick H. Shelledy, Spokane, for respondent.

HUNTER, Judge.

The main issues presented on this appeal are (1) whether the will of Roy H. Douglas vested the income from his estate in his surviving spouse, Maude Douglas, and (2) whether two bank accounts became her property by right of survivorship.

Roy H. Douglas (hereafter referred to as Roy Douglas) and Maude Douglas were married November 30, 1948, approximately one year after the death of his first wife. He executed the will in question September 21, 1961, and died April 22, 1962. The will was admitted to probate and Maude Douglas was appointed executrix on April 30, 1962. She filed an inventory in the estate, in which she designated a float house, boat and motor as community property and the remainder as her husband's separate property. The court, on the petition on Maude Douglas, awarded her a family allowance of $750 per month, effective as of the date of her husband's death.

Maude Douglas died testate November 30, 1962. Her will was admitted to probate and Helen June Wallace was appointed executrix on December 7, 1962. Helen June Wallace was the daughter of Maude Douglas by a prior marriage and was sole beneficiary under her mother's will. The court appointed LaVerne S. Siverson, the son of Roy Douglas' first wife by a prior marriage, administrator de bonis non with the will annexed of Roy Douglas' estate on December 19, 1962. Siverson was beneficiary under the residuary clause in the will.

On January 3, 1963, Helen June Wallace, in behalf of her deceased mother, filed the final account and report in the estate of Roy Douglas. It provided, inter alia, that a $6,313.92 checking account in the Reardan Branch of the Old National Bank of Spokane, and a $10,163.04 savings account in the Northwest Boulevard Branch of Lincoln First Federal Savings & Loan Association of Spokane, were the separate property of Maude Douglas by right of survivorship. Insofar as is here material, the final report and account further provided that the $8,042.62 net income from the farm of Roy Douglas, which accrued during the period in which his wife survived him, passed to Maude Douglas under the terms of his will; that the family allowance to which Maude Douglas was entitled should come out of the corpus of the estate of Roy Douglas; that the sum of $3,000 was a reasonable fee for the services of executrix performed by Maude Douglas, and to be awarded her estate out of the estate of Roy Douglas; and that the float house, boat and motor were community property.

Appellant Siverson filed an answer and objections to the final account and report. The matter went to trial. On September 20, 1963, the trial court made findings of fact and conclusions of law and entered judgment approving and confirming the final account, subject to certain exceptions, including provisions that a 1955 Chrysler automobile and a $57.98 automobile-insurance refund were community property. The trial court further directed that the Roy Douglas estate pay the attorneys for respondent, Helen June Wallace, $1,250 in fees. Siverson appeals.

Paragraphs III and IV of Roy Douglas' will provide the following:

'III.

'I give and bequeath unto my wife Maude Douglas all the rest, residue and remainder of my estate, both real and personal, together with the income therefrom, for and during her lifetime, and at her death as follows:

'To Helen Wallace, my step-daughter, the sum of $500.00.

'To Barbara Bromley, daughter of Helen Wallace, the sum of $500.00,

'To my step-son LaVerne S. Siverson all the rest, residue and remainder of my estate, both real and personal, including my farm land and home in Spokane. (Italics ours.)

'It is my will and intention that my wife Maude Douglas Be comfortably provided for during her lifetime and I hereby provide that she may use the income from my land and investments for that purpose, she may use cash on hand and bonds and other personal property and if necessary for that purpose she may sell the real estate under order of the Court upon proper showing to the Court that such sale is necessary, and I further provide that if my wife Maude shall find that taking care of my home where she now lives is too burdensome or too much of a task for her, that she may sell the same without court order, and use the funds to provide an apartment or other place to live.' (Italics ours.)

The appellant contends the trial court erred in finding that the income from the estate of Roy Douglas vested in Maude Douglas; that by reading paragraphs III and IV of the will together the income was available to her only to the extent of her needs, and that since there was no showing her needs were in excess of the $750 per month awarded to her as family allowance, the income remained an asset of the estate.

The rule is well established that the holder of a life estate created by will is entitled to all income derived from the estate during his tenancy, and any such income which remains unexpended at his death constitutes a part of his estate and does not pass to the remaindermen under the will. Hair v. Farrell, 21 Tenn.App. 12, 103 S.W.2d 918 (1936); Edwards v. Williamson, 202 Ala, 483, 80 So. 867 (1919); In re Cutler, 23 Misc. 508, 52 N.Y.S. 842 (1898); 31 C.J.S. Estates § 41a. But this rule does not apply where the enjoyment of a life estate is specifically Limited to the necessary support and maintenance. Hair v. Farrell, supra, 21 Tenn.App. at p. 21, 103 S.W.2d 918. Paragraph III of Roy Douglas' will unequivocally created a life estate in Maude Douglas. Noble v. Noble, 205 Okl. 91, 235 P.2d 670, 26 A.L.R.2d 1200 (1951); In re McCready's Will, 236 App.Div. 390, 259 N.Y.S. 512 (1932), affirmed in 263 N.Y. 602, 189 N.E. 718 (1933); Medlin v. Medlin, 203 S.W.2d 635, 639 (Tex.Civ.App.1947).

The question for our determination is whether paragraph IV of the will limited the life estate of Maude Douglas so that the $8,042.62 net income which was derived during her tenancy, and which was unexpended by her, passed to the remainderman under Roy Douglas' will, as appellant contends, or whether such income constituted a part of Maude Douglas' estate, as the trial court held.

In construing the provisions of the will we are bound by the oft-repeated rules that the testator's intent is paramount and must be gathered from the four corners of the will when read as a whole. Further, where, as here, an estate is given in one part of a will in clear and decisive terms (paragraph III) it will not be taken away or cut down by doubtful language of a subsequent clause, but only by positive provision in words as clear and decisive as those which created the estate. In re McCready's Will, supra. See Medlin v. Medlin, supra, 203 S.W.2d at p. 639; In re Thomas' Estate, 17 Wash.2d 674, 136 P.2d 1017 (1943). As we said in In re Searl's Estate, 29 Wash.2d 230, 186 P.2d 913, 173 A.L.R. 1247 (1947), the intention which controls is that which is positive and direct, not that which is merely negative or inferential.

In the instant case, it is patent that the statement in paragraph IV, that Maude Douglas may use the income so as to be 'comfortably provided for' does not equate to the positive language the cases require to cut down a life estate. In re McCready's Will, supra; Medlin v. Medlin, supra; Noble v. Noble, supra; Annot., 26 A.L.R.2d 1207. At the very most it creates an inference that the testator intended the estate to be so limited. An inference is not enough. The right of Maude Douglas to the income under paragraph III of the will was not limited by unequivocal language in paragraph IV.

Since Maude Douglas' right to the income was unlimited, the extent to which the family allowance met her 'needs' is not material. The trial court correctly held that under the will of Roy Douglas, Maude Douglas was entitled to all the net income derived from his estate during her lifetime, which passed to her estate.

The appellant contends the family-allowance award should have been paid out of the income of the Roy Douglas estate instead of the corpus. Under RCW 11.52.040 the court may, without qualification, make the family-allowance award out of the estate. The award out of the corpus was therefore proper.

The appellant next contends the trial court erred in holding the bank accounts survived to Maude Douglas. The issue here is whether the two accounts are joint accounts in the nature of joint tenancies, with the right of survivorship annexed.

We will first consider the checking account in the Reardan Branch of the Old National Bank of Spokane. Prior to June 15, 1953, the account had been in Roy Douglas' name alone and was his separate property. On that date, Roy and Maude Douglas each signed a signature card which provided:

'Roy Douglas or Mrs. Joint a/c 2229--000--1

'Joint Checking Account 2 Persons only--Survivorship

'The undersigned, joint depositors, hereby agree, each with the other, and with The Old National Bank of Spokane, that all sums now on deposit, or hereafter deposited by either or both of said joint depositors in this account, with all accumulations thereon, are and shall be subject to the check or receipt of either of them, or the survivor of them, and payment to or on the check of either, or the survivor, shall be valid and discharge said Bank from liability.

Signature: Roy Douglas

Signature: Mrs. Roy Douglas'

The creation of an account in the nature of a joint tenancy, with the right of survivorship annexed, depends upon the intent of the parties....