Estate of Davidson, Matter of

• Decision Date: 25 June 1984
• Docket Number: No. 6456-1-II,6456-1-II
• Parties: In the Matter of the ESTATE OF Beatrice DAVIDSON, Deceased.
• Court: Washington Court of Appeals

Page 886

37 Wn.App. 886

683 P.2d 620

In the Matter of the ESTATE OF Beatrice DAVIDSON, Deceased.

No. 6456-1-II.

Court of Appeals of Washington,

Division 2.

June 25, 1984.

Reviews Denied Sept. 21, Oct. 17, 1984.

James V. Handmacher, Tacoma, for appellant.

Earl Mann, Tacoma, for respondent.

WORSWICK, Acting Chief Judge.

The personal representative of the estate of Beatrice Davidson appeals a summary judgment which determined that Earl Davidson was a pretermitted heir under Beatrice' will, and thus entitled to inherit by intestacy. We reverse, holding that Earl was not a pretermitted heir.

Ethel Barton was Earl's natural mother. Ethel married Charles Davidson in 1919; she died in 1924. Charles married Beatrice in 1925. Charles and Beatrice had no natural children; they adopted Earl in 1935. Beatrice executed the challenged will in July 1981 and died about a month later. Earl contested the will on multiple grounds, one of which was that he was a pretermitted heir. Both parties moved for summary judgment on this issue. Earl prevailed and was awarded the entire estate. See RCW 11.04.015. ¹

RCW 11.12.090 provides:

Intestacy as to pretermitted children. If any person makes his last will and die leaving a child or children or descendants of such child or children not named or provided for in such will, ... every such testator, as to such child or children not named or provided for, shall be deemed to die intestate, ...

(Italics ours.)

The statute is crystal clear: a will must name a child or it must provide for a child (one or the other, but not both). Only if it does neither does that child inherit by intestacy.

Beatrice' will provides, in relevant part:

I.

I hereby declare that I am a widow and that I have no children or deceased children and that EARL R. DAVIDSON is the son of my deceased husband.

II.

On October 24, 1956, my deceased husband, CHARLES F. DAVIDSON, and I entered into a trust agreement, naming the National Bank of Washington at Tacoma, Washington, as trustee, the successor to which bank is now the First Interstate Bank. In the event that at the time of my death there are any funds or assets remaining in said trust, I give, devise and bequeath the same to the son of my beloved deceased husband, EARL R. DAVIDSON, all assets remaining in said trust. In the event no assets remain, I leave nothing to said EARL R. DAVIDSON.

There was, in fact, nearly $8,000 in the trust at Beatrice' death. Thus, Earl was named (albeit incorrectly identified) and was most definitely provided for. He was not pretermitted.

The cases cited by counsel for Earl do not require a different result. In re Estate of Hamilton, 73 Wash.2d 865, 441 P.2d 768 (1968), upon which Earl principally relies, is readily distinguishable. The contesting child, one Shirley McGuire Hamilton, was named in the will but identified as the testator's step-daughter. This was correct when the will was made. Thereafter, however, the testator adopted her but did not change his will. The will left her $1 as a nominal bequest. Thus, it did not provide for her, as a nominal bequest can hardly be considered a "beneficial provision which vests directly and absolutely in the child and becomes legally available." In re Estate of Ridgeway, 33 Wash.2d 249, 205 P.2d 360 (1949); In re Estate of Johnson, 379 P.2d 824 (Wyo.1963); see also Achelis v. Musgrove, 212 Ala. 47, 101 So. 670 (1924); In re Estate of Bank, 248 Cal.App.2d 429, 56 Cal.Rptr. 559 (1967); Stebbins v. Stebbins, 94 Mich. 304, 54 N.W. 159 (1892); Grace v. Hildebrandt, 110 Okl. 181, 237 P. 98 (1925); Brown v. Drake, 275 S.C. 299, 270 S.E.2d 130 (1980). The court concerned itself exclusively with the manner in which the daughter was identified in the will. It concluded that, because of the testator's failure to change his will to reflect the adoption, the misidentification must have been inadvertent, and because the daughter had not been provided for, she was pretermitted. In re Estate of Marshall, 27 Wash.App. 895, 621 P.2d 187 (1980), also relied on by Earl, has virtually the identical fact pattern of In re Estate of Hamilton. The Marshall court recognized the same point about Hamilton we...