In re Hooper's Estate

• Decision Date: 08 November 1921
• Docket Number: 16314.
• Court: Washington Supreme Court
• Parties: In re HOOPER'S ESTATE.

201 P. 740

117 Wash. 463

In re HOOPER'S ESTATE.

No. 16314.

Supreme Court of Washington, En Banc.

November 8, 1921

Appeal from Superior Court, Spokane County; Huneke, Judge.

In the matter of the estate of Arthur E. Hooper, deceased. After probate of will, a petition was filed by Adeline R. Hooper widow, and resisted by the executors resulting in a decree awarding the widow the home, household furniture, given her by the will, and a money judgment against the estate authorizing the executors to sell sufficient of the estate to pay the same, and the executors appeal. Affirmed.

Luby Pearson & Dillard and Stephens & Jack, all of Spokane, for appellants.

E. C. Matthias, of Seattle, and Graves, Kizer & Graves, of Spokane, for respondent.

HOLCOMB, J.

The last will and testament of the decedent in the form of a nonintervention will was duly admitted to probate. By it after providing for the payment of debts, expenses of last sickness and funeral expenses, he bequeathed to two of his relatives bequests amounting to $1,000. He bequeathed to his surviving spouse, Adeline R. Hooper, his equity in his dwelling house and home, together with the household goods and furniture owned by him or in which he had an interest at the time of his death. He devised certain other real estate to his daughter for life, with the remainder to his two sons; the residue of the estate he devised and bequeathed to his wife and two sons, Henry Arthur, and Robert Norman Hooper, share and share alike, as tenants in common, in fee simple. The home devised to the wife had been purchased under a contract of purchase; the unpaid purchase price being payable in monthly installments. The widow, being left without means or substance, was unable to make the monthly installment payments upon the residence, and she filed a petition in the lower court, praying that the residence and household furniture and such other property as she might be entitled to be set apart to her, and that in addition thereto a money allowance should be made to her sufficient to maintain her, according to her circumstances, during the settlement of the estate. The executors joined issue upon this petition, and resisted the allowance. The trial court, after a hearing, made findings substantially as follows: That the petitioner is the surviving spouse, and that there are no minor children of petitioner and the deceased. That debts having priority, after due notice to creditors, have been paid, and the estate is solvent. That petitioner was residing with deceased, and was dependent upon him. That the property of the estate is separate property. That deceased left a will by which he gave to the widow his equity in the dwelling house and home, together with the household goods and furniture. That the will specifically disposed of certain property. That the will contained a residuary clause as follows:

'I give, devise and bequeath all of the rest, residue and remainder of my estate of every kind and character, whether real, personal or mixed, wheresoever the same may be situated, and of whatever the same may consist, not otherwise disposed of by this my last will and testament, to my wife Adeline R. Hooper and to my sons Henry Arthur Hooper and Robert Norman Hooper share and share alike as tenants in common, in fee simple.'

That the home devised to the widow or the equity therein was worth $1,370.63, and the household furniture bequeathed to her was worth $300. That the widow was without means. That no homestead had been selected prior to decedent's death. That the property not specifically devised and which passed under the residuary clause of the will was of the value of $6,468.75, exclusive of interest. The court therefore concluded that petitioner was entitled to have the equity in the dwelling house set aside to her and the furniture and $1,329.37 out of other property not specifically bequeathed or devised, and that the executors should sell and dispose of so much as might be necessary to enable them to pay the above sum to the petitioner. A decree was thereupon entered, awarding the widow the home given her by the will, the household furniture, and $1,329.37, as a money judgment against the estate, and authorized the executors to sell sufficient of the estate to pay this money judgment. No statement of facts is brought up.

Appellants did not resist the award of the home and household furniture, but insist that the court erred in concluding that respondent was entitled to any property in addition to the dwelling house and furniture bestowed on her by the will. It is contended that the whole proceedings are governed by sections 103 and 104 of the Probate Code (chapter 156, Laws of 1917, p. 642 et seq.). Section 103 provides for the setting apart of a homestead not exceeding in value $3,000 when one has not been claimed in the manner provided by law, by the decedent, to the surviving spouse, if any, and out of either separate or community property. Section 104 provides, in the event a homestead has been selected in the manner provided by law and the value thereof would not exceed $2,000, exclusive of incumbrances, in addition thereto, the court, upon being satisfied that the funeral expenses expenses of last sickness and of administration, have been paid or provided for, shall set off and award to the surviving spouse other property, either separate or community, so that the total value of the homestead and other property...