In re Doepke's Estates

• Decision Date: 29 July 1935
• Docket Number: 25423.
• Citation: 47 P.2d 1009,182 Wash. 556
• Court: Washington Supreme Court
• Parties: In re DOEPKE'S ESTATES.

47 P.2d 1009

182 Wash. 556

In re DOEPKE'S ESTATES.

No. 25423.

Supreme Court of Washington, En Banc.

July 29, 1935

Appeal from Superior Court, Spokane County; Joseph B. Lindsley Judge.

In the matter of the estates of Charles Doepke, deceased, and Augusta Doepke, deceased. From an order settling the executor's accounts and distributing the residue of the estates, the executor appeals.

Reversed and remanded.

E. O Connor, of Spokane, for appellant.

Dillard & Powell and Donovan & Donovan, all of Spokane, for respondents.

BEALS Justice.

Charles and Augusta Doepke were for many years husband and wife, and residents of Spokane county, where they owned and operated a valuable farm. The couple had seven children; three sons Herbert, George, and Edward; and four daughters, Alma, Dora, Sophia, and Laura. Charles Doepke died May 1, 1921, leaving a will bequeathing all his personal property to his wife, and giving her a life interest in his share of the real estate. He devised to each of his sons a specific tract of real estate directing that Herbert pay into the estate $4,000, George $2,500, and Edward $2,000, in all $8,500. Mr. Doepke then bequeathed to each of his daughters the sum of $2,000; it being manifestly his intention, as he left little personal property, that the bequests to the daughters be paid out of the money to be turned over to the executor by the three sons, who were to pay the respective charges upon their devises within one year after the death of Augusta Doepke, if she survived her husband. Mr. Doepke's will further provided that, in case he should survive his wife, the residue of his estate, after the particular devises, should be divided among his children, share and share alike. Edward was named executor of this will without bond, and was directed to execute the same without the intervention of the court. After Mr. Doepke's death, his will was admitted to probate, an order of solvency entered, notice to creditors published, and the executor allowed $500 for his services.

Augusta Doepke made her will June 5, 1922. She thereby devised to her sons, respectively, the tracts of real estate which Charles Doepke had devised to them, in each instance subject to the payments required to be made by her husband's will. The paragraphs of the will containing the devises to the sons next precede the following: 'Sixth. That my executor shall use said sums of money directed to be paid by my sons as hereinBefore provided for the payment of the sums provided hereinafter for my daughters.' She then bequeathed $2,000 to each of her daughters, the paragraphs making these bequests being followed by 'Eleventh: I give, devise and bequeath to my beloved son Edward Robert Doepke the sum of $3000.00, being the amount of life insurance left by my husband to me, and the rest, residue and remainder of my property of whatever kind or character, shall be distributed among each of my children herein named, share and share alike.'

The testatrix named her son Edward as executor of her will, to act without bond and without the intervention of the court. Augusta Doepke died September 6, 1932, her will being thereafter admitted to probate and the appointment of the executor therein named confirmed. May 23, 1934, the executor filed his final account and petition for distribution, to which exceptions were filed by certain of the devisees.

In due time the matter came on regularly for hearing, and, after a lengthy trial, the court entered its order settling the executor's accounts and distributing the residue of the estate, from which order Edward Doepke, both as executor and individually, has appealed. On the same day this decree was entered, the court signed an order consolidating the estates of Charles and Augusta Doepke, reciting that the two estates embraced practically the same property, and that the same persons were interested therein as devisees.

The trial court held that the legacy to Edward in the sum of $3,000, contained in the paragraph of Augusta Doepke's will above quoted, was a specific legacy; found that the fund bequeathed to Edward had ceased to exist at the time of Augusta's death; and concluded that the legacy therefore failed, and that Edward was not entitled to receive anything thereunder. Appellant assigns error upon this ruling.

In the course of administration, the executor brought suit against his sister Laura upon a promissory note which she had executed to her mother, and recovered judgment against her in favor of the estate. The trial court, in settling Laura's interest in the estate, because of some agreement on the part of some of the heirs, made an order concerning this judgment, upon which appellant assigns error.

During the course of administration Edward and Alma presented claims against the estate based on two promissory notes payable to them respectively. In the order settling the accounts, these notes were by the court rejected, which ruling is also assigned as error. Other claims and alleged disbursements were rejected by the trial court over the protest of the executor, of which rulings he complains.

The executor also contends that the trial court erred in its mathematical calculations, and charged him with over $1,800 more than he was properly accountable for, and that the trial court erred in refusing to allow the executor adequate compensation for his own services and as fees for his counsel.

The decree of distribution is entitled in the consolidated estates, and distributes to each daughter $2,000; the two wills being treated as one in that connection.

Considering, in the first place, the $3,000 bequest to Edward, it is manifest that Mrs. Doepke, in making her will, followed exactly the plan which was the basis of her husband's will. After Mr. Doepke's death, she had received $3,000 as the proceeds of a policy upon his life. She had, therefore, this fund subject to her testamentary disposition, which her husband had not possessed. It appears that Mrs. Doepke, at least for some time after making her will, preserved this $3,000 fund intact, and apparently treated it, to some extent at least, as having some separate entity or quality of its own. Respondents state that she enjoyed a gross income of approximately $1,900 per year, and a net income of something over half that amount. Her son Edward, who was by profession an accountant, was apparently her chief adviser in matters of business. After the summer of 1930, Mrs. Doepke lived with Edward and another of her sons on the farm. By this time, Mrs. Doepke had become very feeble, and for the last two years of her life was blind and partially paralyzed. During this period, Edward handled his mother's financial affairs, having the privilege of drawing money from her banking account on his own signature. Soon after the death of the mother, and even Before the probate of her will, antagonisms developed between Edward and his brothers and sisters, who felt that he had unduly benefited through his confidential relations with the mother. It is undoubtedly true that, during the last years of Mrs. Doepke's life, a considerable amount of her money was spent. It appears from the record that the trial court criticized Edward quite severely in this connection because of his inability or refusal to account for the money which had been expended. It is undoubtedly true that the accounts of the two estates were not well kept, and became somewhat confused.

Respondents contend, and the trial court found, that the legacy of Edward was specific in its character; that the testatrix intended to bequeath to Edward a particular fund of $3,000, received by her as the proceeds of her husband's life insurance; that the fund had ceased to exist at the time of Mrs. Doepke's death; and that the legacy, being specific, for this reason failed.

On the other hand, appellant contends that the legacy was demonstrative, and is payable to him out of the general funds of the estate, regardless of whether or not the particular $3,000, the actual proceeds of the life insurance, had been expended by Mrs. Doepke during her lifetime. To determine this question, we shall discuss the matter from the standpoint of whether or not the bequest is specific or general, treating the classes of general and demonstrative legacies as similar, for the purposes of this discussion.

In 69 C.J. § 2085(2), page 919, a specific legacy is defined as a bequest of a particular thing, or specified part, of the testator's estate. 'The testator must intend that the legatee have the very thing bequeathed, not merely a corresponding amount in value or like property.'

In section 2086(3), a general legacy is defined as '* * * one which does not direct the delivery of a particular thing or part of the estate, as distinguished from all others of the same kind and capable of precise identification, or the payment of money out of a particular portion of the estate * * * The legacy is one of quantity, either of money or other chattels, not in any way separated or distinguished from all others of a like kind.'

By section 2087(4), a demonstrative legacy is defined as '* * * one payable out of a particular fund primarily, but, if the fund designated fails, out of the general assets. The legacy is one of quantity; two elements are necessary: (1) It must be an unconditional gift in the nature of a general legacy, and (2) the legacy must indicate the fund out of which it is payable. For a legacy to be treated as demonstrative, the fund must be in existence at the time of the testator's death.'- In section 2096(2), the rule is laid down that '* * * a legacy is presumed to be general rather than specific, unless it clearly appears to be specific, especially where the legacy is of a pecuniary character.' It is...