In re Belknap's Estate

• Citation: 123 P.2d 358,12 Wn.2d 643
• Decision Date: 13 March 1942
• Docket Number: 28564.
• Court: United States State Supreme Court of Washington
• Parties: In re BELKNAP'S ESTATE. v. McCLURE et al. SEIBERT et al.

123 P.2d 358

12 Wn.2d 643

In re BELKNAP'S ESTATE.

SEIBERT et al. v. McCLURE et al.

No. 28564.

Supreme Court of Washington

March 13, 1942

Department 2.

Proceeding in the matter of the estate of Charles C. Belknap, deceased. From a decree approving the final account of Walter A McClure as executor of the estate of Charles C. Belknap deceased, and distributing the estate, Henry W. Seibert and thirteen others, opposed by Walter A. McClure, as executor and Alice Canfield and Hattie Canfield, appeal.

Affirmed.

Appeal from Superior Court, King County; Chester A. Batchelor, Judge.

Caldwell Lycette & Diamond, of Seattle, for appellants.

Edgar S. Hadley, of Seattle, for respondents Canfield.

Wm. E. McClure, of Seattle, for executor.

JEFFERS Justice.

This is an appeal by Henry W. Seibert and thirteen others from a decree entered by the superior court for King county, approving the final account of Walter A. McClure, as executor of the estate of Charles C. Belknap, deceased, and distributing the estate.

Appellants raise two questions on this appeal: (1) Is the allowance of twenty-five thousand dollars in fees to the executor, Walter A. McClure, and his attorney, William E. McClure, excessive? (2) Should the Canfield heirs bear their proportionate share of the inheritance taxes and costs of administration?

We shall take up the second question first.

Charles C. Belknap, a bachelor, died testate in King county, Washington, on October 27, 1938, at the age of seventy-nine. His will was admitted to probate, and Walter A. McClure, named therein, was duly appointed executor on October 31, 1938. The executor qualified and continued to act up to the time of the hearing on his final account and petition for distribution. This was a non-intervention will, and as provided therein, Mr. McClure was appointed executor, without bond.

As shown by the inventory filed on December 9, 1938, the estate comprised certain real estate in King county, consisting principally of unimproved lots, together with the Belknap home, all of which was appraised at thirteen thousand dollars; four thousand shares of the capital stock of the C. C. Belknap Glass Company, a Washington corporation (hereinafter referred to as the Glass Co.), of the appraised value of $153,440; ten thousand shares of the capital stock of Alaska Pacific Mines, Inc., a Washington corporation, of the appraised value of $12,500; 17,500 shares of the capital stock of Muletown Consolidated Mines, Inc., a California corporation, ten thousand shares thereof being evidenced by certificate No. 14, deposited in escrow with the Anglo-California National Bank at Redding, California, and 750 bonus shares to be issued to decedent as one of those who originally financed the enterprise, appraised at $2,625; deposit in First National Bank of Seattle, $1,090.84; deposit in First National Bank of Chicago, $204.98; salary payable by the Glass Co. to Mr. Belknap, $6,149.04; money on decedent's person at death, $17.17; two promissory notes of no appraised value; three thousand shares of preferred stock of Willowcreek Alaska Company, of no appraised value; personal property in residence, together with some personal effects of deceased, of the appraised value of $2,055.

The Canfield heirs above referred to are devisees under paragraphs 13 and 14 of the will, which read in part as follows:

'Thirteenth: I hereby give and bequeath unto my cousin Alice Canfield of Los Angeles, California, one-half of the shares of mining stock I own in the Alaska-Pacific Mines, Inc., of Anchorage, Alaska * * *.

'Fourteenth: I hereby give and bequeath unto my cousin Hattie Canfield of Los Angeles, California, the remaining one-half of the shares of mining stock I own in the Alaska-Pacific Mines, Inc., of Anchorage, Alaska * * *.'

The trial court decreed that the shares of stock above mentioned be distributed to Alice and Hattie Canfield, free and clear of any claim or charge for general taxes, state or Federal inheritance taxes, or costs of administration, and that dividends from such stock, declared and received by the executor since the death of Mr. Belknap, also be so distributed.

Appellants specifically contend that under paragraph 23 of the will, the testator provided a fund from which was to be paid expenses of administration and all taxes; that to make up this fund, the testator directed that not to exceed four hundred shares of the Glass Co. stock be sold by the executor; that the proceeds from the sale of four hundred shares of this stock was not sufficient to pay such taxes and costs of administration, and that therefore the Canfield sisters should bear their pro rata share of such taxes and expenses.

It is further contended by appellants that the devise to the seventeen individuals named in paragraph 23-1-a is not a residuary bequest, but is a specific bequest.

The theory of the executor at all times, and the theory adopted by the trial court, was that under paragraphs 2 and 23 of the will, it is plain that it was the intention of the testator that all the expenses of administration and all taxes be paid from the residuary estate, and that all the specific bequests and devises made prior to paragraph 23 should be distributed, free and clear from such taxes and expenses, the will being clear and unambiguous on that point, and the estate being solvent. The will provides:

'Second: I hereby direct the payment of my funeral expenses, the expenses of my last sickness, all my just debts and liabilities and all estate and inheritance taxes due and payable from my estate and upon the bequests and devises herein provided for.' (Italics ours.)

The will gave money, specific personal property and real property to seventeen named beneficiaries. After making such bequests and devises, the will provides: 'Twenty-Third. I hereby direct my executor to sell and turn into money all the property of my estate not specifically bequeathed or devised excepting the shares of stock of C. C. Belknap Glass Company belonging to my estate, and I hereby authorize, direct and empower my executor to sell and dispose of, upon such terms and for such prices as he may deem advisable, so many of the shares of the capital stock of C. C. Belknap Glass Company belonging to my estate, not exceeding 400 shares, as in his judgment shall be reasonably necessary, in addition to the proceeds of the sale of other assets belonging to my estate, and such income as he shall receive by way of dividends from the shares of stock of C. C. Belknap Glass Company, to provide a fund sufficient to pay all my funeral expenses, the expenses of my last sickness, my just debts and liabilities, general and special taxes and assessments, the estate tax (if any) payable to the United States, and all inheritance taxes due to the state of Washington upon all bequests and devises herein and hereby given, the cash bequests hereinabove provided for and the costs and expenses of administration of my estate; and when all such payments shall have been made, all of the remainder of such shares of stock, and all of the residue of my estate, I hereby give and bequeath unto Walter A. McClure and the Seattle-First National Bank, of Seattle, Washington, in trust nevertheless for the following uses and purposes:

'1. During the term of the trust hereby created the income and dividends arising from such shares of stock shall be by my trustees assigned and distributed as follows, to-wit:

'a. The dividends and income arising from thirty-six hundredshares of such stock shall be paid to employees of C. C. Belknap Glass Company as follows:

[Then follow the names of seventeen employees, among whom are the fourteen appellants.]

'At any time prior to the termination of the trust hereby created the executor or trustees or trustee shall have power in his or their or its discretion to pay to new employees after two years of satisfactory service to the company the dividends and income arising from all or any part of the remaining 400 shares of the capital stock of C. C. Belknap Glass Company, such dividends and income to be allocated among such new employees as the executor or the trustees or trustee shall then determine.

'b. The dividends and income arising from all of the remainder of the shares of stock and property held in trust shall be from time to time divided and distributed among all of the employees of C. C. Belknap Glass Company at the time of such distribution as a recognition of meritorious and efficient service to the company, including those employees of the company who are mentioned in subdivision 'a' above, in such ratios and amounts from time to time as shall be determined by the board of trustees of C. C. Belknap Glass Company and approved by the trustees under this will. All distributions of dividends under subdivision 'a' and 'b' shall be in addition to the regular salaries received respectively by such employees.' (Italics ours).

Subdivision 'a' provides that in case any employee mentioned in subdivision 'a' shall resign or be discharged, he or they, as the case may be, shall forfeit all right to receive any of the income or dividends provided in subdivision 'a', and in such case, such dividends shall be added to the amounts to be distributed under subdivision 'b'.

Subdivision 'd' provides that in case any of the employees mentioned in subdivision 'a' shall die while in the service of the company, leaving a widow, one-half of the provision made for such employee shall be paid to the widow, so long as she shall remain unmarried, or until the termination of the trust.

Subdivision 'e' provides that nothing in the will shall be construed as imposing a duty upon the trustees to distribute to employees of the Glass Co. any greater amount than the board...