In re Hart's Estate

• Decision Date: 10 January 1929
• Docket Number: 21365.
• Citation: 273 P. 735,150 Wash. 482
• Court: Washington Supreme Court
• Parties: In re HART'S ESTATE. v. MORSE et al. HART

273 P. 735

150 Wash. 482

In re HART'S ESTATE.

HART v. MORSE et al.

No. 21365.

Supreme Court of Washington

January 10, 1929

Department 1.

Appeal from Superior Court, Pierce County; Ernest M. Card, Judge.

In the matter of the estate of John B. Hart, deceased. William B Morse and another, executors of deceased, filed a petition for directions and construction of the will, and, from judgment sustaining the contention of the executors and beneficiaries, Leila M. Hart, the surviving widow, appeals. Affirmed.

See also, 271 P. 886.

Arthur E. Griffin, of Seattle, for appellant.

McClure & McClure and F. C. Kapp, all of Seattle, for respondents.

HOLCOMB J.

John B Hart died June 17, 1927, leaving a last will and codicil thereto disposing of community estate. His will and codicil provide:

'First. I direct that all my just debts be paid.

'Second. I give, devise and bequeath to Robert W. Prigmore, of Seattle , Washington, all my law library, together with all books, papers and office fixtures and furniture thereof and used in connection therewith.

'Third. I give, will, devise and bequeath to my two sisters, Alice J. Hart and Emma C. Hart, both of Seattle, Washington, in equal parts all the rest and residue of my property, real, personal and mixed, (including property in possession and all expectancies) of every kind and character whatsoever and wheresoever situated.

'Should either of my said sisters depart this life before I do, then I give, devise and bequeath all the rest and residue of my property to the said sister who may be remaining and who may survive me. Should one of these sisters die after my decease and should there then be remaining any of my property, then it is my will that the surviving sister shall take the whole of my property so remaining to the exclusion of the heirs and legatees, if any, of the said sister so dying.

'Fourth. I hereby revoke, annul and cancel all former wills by me made.

'Fifth. I hereby nominate and appoint Robert W. Prigmore sole executor of this my last will and testament and I direct that my estate shall be settled in the manner provided for in this will; and that no letters testamentary or of administration shall be required, and that no proceedings shall be had in court pertaining thereto other than sufficient to admit this my last will and testament, to provate; and that my estate shall be managed without the intervention of any Court or Courts whatsoever; and that my executor shall never be required to account to any Court or Courts, nor to any person whomsoever, for any of his acts or doings hereunder.

'Sixth. Whilst no provision is made in this my last will and testament for my beloved wife, Leila, yet I wish to state that this will is executed with her full knowledge and approval.

'Codicil

'First. Owing to the death of Robert W. Prigmore, which occurred subsequent to the execution of said will. I hereby annul and cancel the bequest made to him, as found in the second paragraph thereof, and I will, devise and bequeath the property mentioned in said second paragraph to my sisters, Alice J. Hart and Emma C. Hart, being the beneficiaries mentioned in the third paragraph of said will, and subject to the same terms and conditions as in said third paragraph contained.

'Second. I direct that the fifth paragraph of my will be changed because of the death of said Robert W. Prigmore and in his stead I nominate and appoint my nephews, William B. Morse and R. H. Conner, as executors of my said last will and testament, and with this sole exception the other provisions of said fifth paragraph shall remain in force and effect.

'Third. In the third paragraph of my said will is found the following clause: 'Should one of these sisters die after my decease and should there then be remaining any of my property then it is my will that the surviving sister shall take the whole of my property so remaining to the exclusion of the heirs and legatees, if any, of said sister so dying.' In explanation of this clause it is my will and intent that these sisters of mine shall have the right, during their lives, to sell and dispose of any part or portion, or all of my property received by them, and that the purchaser thereof shall take and receive a full title thereto, free from any claim of either of the sisters that may survive, but should any portion of the property or its property or its proceeds be remaining at the death of either of the sisters, then the surviving sister shall take and receive the same as in the will provided; and in case any of the property be so sold, then they shall have the right to use the same in such manner as they may see fit, or they may invest and reinvest the proceeds therof; and should there be remaining any portion of the proceeds on the death of either sister, then the clause herein quoted shall operate upon the same.'

The will was dated February 5, 1909, and the codicil September 13, 1924, both at Seattle, Wash.

In probating the estate appellant, the surviving widow of the testator, disagreed with the beneficiaries, Alice J. and Emma C. Hart, as to the construction of the will. Appellant contended and now contends that the debts should first be paid from decedent's property and that the beneficiaries were entitled to that part of decedent's property remaining after payment of decedent's just debts. The beneficiaries and executors claimed and still contend that the debts must be paid from the community property of decedent and appellant and that the other beneficiaries would be entitled to all of decedent's property after the debts and expenses were paid from the community property.

Upon a petition in the lower court for directions construing the will, that court entered a decree sustaining the contention of the beneficiaries and the concurring executors and against that of appellant.

After eliminating separate property of the value of $58,860, stricken from the inventory of the estate as being the separate property of the widow, the appraised value of the community estate of the spouses aggregates $188,409.46. Against this are mortgage debts consisting of two mortgages each for $25,000, both executed by both spouses, general unsecured claims aggregating $18,977.46, and the estimated administration expenses amounting to $15,000.

The question for our decision is whether under the provisions of the will all the debts should be first paid from decedent's property, thus passing to appellant her community interest in the estate free and clear of all the community indebtedness.

Appellant contends that this case is controlled by a decision in Redelsheimer v. Zepin, 105 Wash. 199, 177 P. 736. The provisions of the will construed in that case were very peculiar, and the decision sui generis. The will in that case provided that the executors, as soon as they had sufficient funds in their hands belonging to the testator's estate, pay his funeral expenses, etc., and all just debts, demands, and charges of every kind and nature properly chargeable against testator's estate. There was another clause declaring the reasons of the testator for not leaving more of his estate to his wife than he did by will; he, in fact, giving to her only her own one-half community interest, which he had no power under our statute to do, and bequeathed certain personal property to her. This court sustained the judgment of the trial court that the will 'charged the payment of all his debts and obligations, including the debts and obligations of the marital community of himself and his wife, Glorvina Redelsheimer, upon his one-half interest in the community property of the said marital community.' In the decision this court referred to the statute, now Rem. Comp. Stat. § 1342, which provides: 'Upon the death of either husband or wife, one-half of the community property shall go to the survivor, subject to the community debts, and the other half shall be subject to the testamentary disposition of the deceased husband or wife, subject also to the community debts.'

As to the contention of appellants in connection therewith, that because there was no clear provision in the will that the debts should be paid from the community interest of the testator and because the terms of the will did not clearly show the intention of the testator that his share of the community estate should pay all the debts, therefore the debts should be borne ratably by the whole estate and the balance of the estate, after the debts were paid, distributed according to the terms of the will, we held that it was clear from the provisions of the will that all just debts, demands, and charges of every kind and nature were properly chargeable against his estate; that the testator intended that his estate should pay all the debts of the estate, both separate and community, and that the balance of his estate should be distributed as provided in the will. We laid special emphasis upon those clauses referring to 'my' estate. That decision goes to the extreme limit in construing such testamentary provisions, and we do not desire to extend its application.

There are no such provisions in the will before us now. The first clause of the will is merely a general direction that all his just debts be paid. That would be compulsory under our statutes at all events, without any direction.

'Nor does a general direction in the will that 'all just debts shall be first paid,' in itself take the case out of this rule in regard to mortgages not created by the deceased. Hetzel v. Hetzel [74 N. J. Eq. 770, 71 A. 755] supra; Meyer v. Cahen, 111 N.Y. 270, 18 N.E. 852. Such a provision in a will creates no new obligation on the executor; such payments being required by law in any event. Concerning this provision in a will,...