In re Harper's Estate, 23556.

• Decision Date: 02 May 1932
• Docket Number: 23556.
• Citation: 10 P.2d 991,168 Wash. 98
• Court: Washington Supreme Court
• Parties: In re HARPER'S ESTATE. v. HARPER. HARPER

10 P.2d 991

168 Wash. 98

In re HARPER'S ESTATE.

HARPER v. HARPER.

No. 23556.

Supreme Court of Washington

May 2, 1932

Department 2.

Appeal from Superior Court, King County; Daniel H. Carey, Judge.

In the matter of the estate of Russell Harper, deceased. Proceeding by Hope Harper against Laura Dagmar Harper, individually and as executrix of the will of Russell Harper, deceased. From decree for Hope Harper, Laura Dagmar Harper, individually and as executrix, appeals.

Reversed and remanded, with directions.

Peters, Evans & McLaren, of Seattle, for appellant.

John F Dore, of Seattle, for respondent.

MAIN J.

The question in this case is whether Hope Harper, a daughter of Russell Harper, deceased, is entitled to share in his estate notwithstanding the language used in his last will and testament.

Russell Harper and Josephine Schwartz were married in San Francisco Cal., May 29, 1902, and Hope Harper was the issue of this marriage, born October 21, 1904. Some months prior to the birth of the child, Russell Harper abandoned his wife, and never thereafter lived with her. Hope Harper never saw her father, except on one occasion, and that was when she was six or seven years of age. Hope Harper's mother died in 1908 and she was brought up by her maternal grandmother.

Russell Harper and Laura Dagmar Harper were married in the month of June, 1926. December 13, 1929, while in the state of California, Russell Harper made and executed his last will and testament, in paragraph 3 of which, after providing for the payment of his debts, funeral expenses, etc., he gave, devised, and bequeathed to his wife, Laura Dagmar Harper, all the remainder of the property which he then owned or in which he might have any interest at the time of his death, and provided that, in the event that his wife should die Before he did, the property should go, share and share alike, to a cousin named and to a niece of his wife.

[168 Wash. 100] Paragraph 4 of the will was as follows: 'In case any child or children shall hereafter be born to me, I bequeath to each such child the sum of Five Dollars, and in the event any person shall contest this will or attempt to establish that he or she is entitled to any portion of my estate or to any right as an heir to me, I hereby give and bequeath to such person the sum of Five Dollars.'

Russell Harper, while a resident of Seattle, this state, died October 4, 1930, and his will was thereafter admitted to probate. He had no children other than Hope Harper. Both his parents, of whom he was the only child, preceded him in death. Hope Harper filed a petition in which she sought one-half of the estate, notwithstanding the will. The cause came on to be heard upon the petition and the answer thereto, and resulted in findings of fact, from which the court concluded that Hope Harper was entitled to share in the estate. From the decree entered to the effect that she was entitled to one-half of the estate, and that, when the decree of distribution should be entered, she should be awarded one-half of the net proceeds thereof, Laura Dagmar Harper, individually and as executrix of the will of Russell Harper, deceased, appeals.

As above stated, the question is whether Hope Harper was entitled to share in her father's estate, notwithstanding paragraph 4 of the will, above set out. Section 1402, Rem. Comp. Stat., provides that: 'If any person make 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, although born after the making of such will or the death of the testator, every such testator, as to such child or children not named or provided for, shall be deemed to die interstate, and such child or children or their descendants shall be entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate, and the same shall be assigned to them, and all the other heirs, devisees and legatees shall refund their proportional part.'

It will be observed that under this section Hope Harper was entitled to share in her father's estate as an heir, unless she was named or provided for in the will in such a way as to answer the requirements of the statute. The purpose of the statute was to provide against any child being disinherted through inadvertence of the testator when making his will, and, in order to satisfy the requirements of the statute, it is not necessary that a child or children be named specifically by each of their individual names or by terms or individual indication. It is sufficient to prevent a pretermission if the children of the testator are mentioned as a class, when coupled with words sufficient to show that the class was in the testator's mind. In Gehlen v. Gehlen, 77 Wash. 17, 137 P. 312, 313, the statute above mentioned was fully considered and the previous decisions of this court reviewed. The question in that case, as stated in the opinion, was this: 'Can the children of a testator be disinherited by naming them as a class, or must they be named specifically by each of their individual names, or by terms of individual identification?'

In the course of the opinion it was said: 'The purpose of this and similar statutes is not to declare as a policy of law that a testator shall not disinherit any of his children, nor to compel him to make some provision, whether substantial or otherwise, for any of them. Its purpose was merely to provide against any child being disinherited through inadvertence of the testator when making his will. Any construction of the statute which would have the necessary effect of compelling such a provision for any possible child would seem to be unwarranted as broader than the purpose of the statute and should not be adopted unless the real purpose of the statute, namely, to prevent pretermission of any child, can only be accomplished by such a construction. * * * Since the purpose of the statute was merely to prevent pretermission and not to compel a testamentary provision for any child, we are forced to the conclusion that the mention of the children of the testator as a class, when coupled with words sufficient to show that the class then in the testator's mind included not only all children in esse but children thereafter to be born, is a sufficient naming of the children for the purpose of disinheritance within the meaning of the statute. * * * After all, in applying this statute as in other connections, the intention of the testator, when made clearly apparent on the face of the will, must prevail. * * * It seems to us more consonant with the obvious purpose of the statute to hold that the naming of the children as a class, whether for the purpose of providing for them or for the purpose of disinheritance, when coupled with language conveying either intention, is such naming as to show that no child has been unintentionally overlooked, to avoid which contingency was the sole purpose of the statute. So far as any of our former decisions may be construed as holding the contrary, they are hereby overruled.'

The cases of Bower v. Bower, 5 Wash. 225, 31 P. 598; In re Barker's Estate, 5 Wash. 390, 31 P. 976; Hill v. Hill, 7 Wash. 409, 35 P. 360; and Purdy v. Davis, 13 Wash. 164, 42 P. 520, are thoroughly considered and reviewed in the opinion in that case, with the result that, in so far as they were out of harmony therewith, they were expressly overruled.

The question that is here presented was not involved in the case of In re Hebb's Estate, 134 Wash. 424, 235 P. 974, and was not discussed therein. The question there was whether an adopted child was a 'descendant' of his adoptive parents, within the contemplation of the statute above quoted. As a preliminary to the consideration of this question, the statute was quoted in the opinion and the pertinent parts paraphrased. There was there no comment upon what was a sufficient designation of a child or children in order to meet the requirements of the statute. The state of Missouri has a statute which in all material respects is the same as that of this state. In McCourtney v. Mathes, 47 Mo. 533, the Supreme Court of that state had Before it a will which provided: 'I give and bequeath to my beloved wife, Bridget, the sole and entire possession and disposal and management of all my real and personal estate, also the sole and entire management and education of my children; and that she shall have the management, distribution and disposal of everything as completely, according to law, as I myself now have, during her widowhood. But in case she should change her mind and marry, my will is that the estate in her possession at the time shall be disposed of according to law among my surviving heirs.'

The question there, as here, was whether the terms of the will were sufficient to work a disinheritance of the children under the statute. In disposing of this question it was said 'It is plain that she must have been in his mind. There are two allusions by the testator to his children: one in giving to his widow their management and education, and one in giving a remainder to his heirs, contingent upon her marriage. They were all remembered or were all forgotten; and while he remembered them collectively, can it be said that he had forgottn them all individually? The object of the statute was to guard the testator against the effect of a mistake in providing for some of his children to the exclusion of others, through forgetfulness of their existence, or in otherwise disposing of his property in such forgetfulness, and the failure to allude to them is made evidence that they were so forgotten. In speaking of his children or heirs, had the testator named some of them, with no allusion to the plaintiff, we might then assume that...