In re Hill's Estate

• Citation: 119 Wash. 62,204 P. 1055
• Decision Date: 09 March 1922
• Docket Number: 16638.
• Court: United States State Supreme Court of Washington
• Parties: In re HILL'S ESTATE. v. UPPER HILL

204 P. 1055

119 Wash. 62

In re HILL'S ESTATE.

HILL v. UPPER

No. 16638.

Supreme Court of Washington

March 9, 1922

Department 2.

Appeal from Superior Court, King County; Mitchell Gilliam, Judge.

Action by Fred D. Hill against George W. Upper, executor of the will of S. G. Hill, deceased, to construe a paragraph in the will. From judgment for plaintiff, defendant appeals. Affirmed.

Hovey J., dissenting.

Kerr McCord & Ivey, of Seattle, and Weightstill Woods, of Chicage Ill., for appellant.

H. D Moore and H. F. Moore, both of Seattle, and Thos. L. Marshall, of Chicago, Ill., for respondent.

MAIN J.

The purpose of this action was to construe a paragraph in the will of S. G. Hill, deceased. The petitioner was an heir, and the defendant was the executor. The trial resulted in findings of fact, conclusions of law, and a judgment holding that the paragraph of the will in controversy was void, and the property sought to be disposed of thereby would pass to the heirs of the deceased. From this judgment the executor appeals.

S. G. Hill died in the city of Seattle some time during the month of May, 1919. His will was admitted to probate on the 2d day of June of that year. Thereafter the respondent brought this action for the purpose of testing the validity of one paragraph of the will. It will not be necessary here to set out in full the will or the paragraph involved, but only such portions as are material to present the question to be determined. The testator, after stating that he recognized the effectiveness and curative value of homeopathic remedies and treatment as outlined in certain books hereinafter named in the excerpt from the will quoted, and deploring the present lack of instruction in schools of medicine, directed the trustee named in the will to invest the residue of his estate in bonds and apply the income in perpetuity after deducting the expense of handling the trust to pay for the services of a competent homeopathic physician or physicians who should give instruction----

'at or near' some reputable homeopathic school of medicine in the United States to demonstrate to said students the effectiveness of said homeopathic remedies and treatment in cases of chronic diseases; said physician in said lectures and clinics, shall use as text books and confine the instruction to the proposition, principles and methods laid down in Hahnemann's Organon of the Art of Healing; The Nature of Chronic Diseases (Hahnemann's), and J. T. Kent's Lectures on Homeopathic Philosophy, and also shall be required to teach his students the use and application of Kent's Repertory of Homeopathic Materia Medica.

'Said trustee shall have the power to select, replace and remove said physician, and the selection from time to time of the homeopathic school, of medicine, at or near which said physician shall teach.

'The instruction and clinics to be free and open to all students of medicine who may desire to avail themselves thereof. * * *

'Realizing that many schools of medicine and numerous physicians are antagonistic and apathetic in regard to the homeopathic principles and methods herein referred to, it is my will and wish that said trustee and its successors exercise care and diligence in determining the qualifications of said physicians as they may appoint hereunder and of the medical school or schools, at or near which said physician shall teach, to the end that there shall be no subversion or distortion of the instruction and information which I desire may become available to such students in medicine who may desire to receive the same.'

This excerpt from the will, it will noticed, provides that----

A homeopathic physician who shall give the instruction shall be confined to 'use as textbooks and confine the instruction to the proposition, principles and methods laid down in Hahnemann's Organon of the Art of Healing, The Nature of Chronic Diseases (Hahnemann's), and J. T. Kent's Lectures on Homeopathic Philosophy, and also shall be required to teach his students the use and application of Kent's Repertory of Homeopathic Materia Medica.'

The latter clause in the will shows that the books mentioned shall be taught without...