In re Lidston's Estate

• Decision Date: 24 January 1949
• Docket Number: 30664.
• Court: Washington Supreme Court
• Parties: In re LIDSTON'S ESTATE. v. DAVIS. CUNNINGHAM et al.

202 P.2d 259

32 Wn.2d 408

In re LIDSTON'S ESTATE.

CUNNINGHAM et al. v. DAVIS.

No. 30664.

Supreme Court of Washington

January 24, 1949

Department 1

Proceeding in the matter of the distribution of the estate of Charles Lidston, deceased, wherein Robert P. Cunningham, as executor of the will of decedent, and individually, prayed that his interpretation of the will be accepted wherein John M. Davis as guardian ad litem of Stephen J. Lidston and Betty Lou Lidston, appeared and filed objections, and the State of Washington, Inheritance Tax Division, filed its appearance. From the decree, Robert P. Cunningham, as executor, and individually, and the Inheritance Tax Division appeal.

Appeal from Superior Court, King County; John A. Frater, judge.

Jas. A Dougan, of Seattle, and Smith Troy and Philip W. Richardson both of Olympia, for appellants.

John M. Davis, of Seattle, for respondent.

STEINERT Justice.

The executor of a decedent's will and the state of Washington, acting through the inheritance tax and escheat division of the state tax commission, have each appealed from the final decree of distribution entered by the superior court for King county sitting in probate. The question presented to us in both appeals involves the interpretation of the residuary clause of the will. The facts in the case are not in dispute.

Charles Lidston, who will hereinafter at times be referred to as the decedent or as testator, was a bachelor residing in Seattle, Washington. On April 12, 1945, he executed an instrument, denominated his last will and testament, which he himself had previously drawn. The will consists of three paragraphs. The first paragraph provided for the testator's burial, specifying that the funeral expenses should not exceed $350. By the provisions of the second paragraph, Robert P. Cunningham, of Seattle, was appointed executor, to serve without bond and without the intervention of any court, with power to grant, bargain, sell, convey, or exchange the whole or any part of the testator's estate. The third paragraph reads:

'Third: I direct my Executor to sell the following real estate [lot in Seattle]. I also direct my Executor to dispose of contents of dwelling, with the Exception of any part belonging to my niece Esther J. Lidston, and at the discretion of my Executor to give to my nieces Esther J. Lidston and Phyllis Ann Cunningham any part thereof, selling the remainder. Also I direct my Executor to dispose of any bonds at the best market prices, and with the proceeds from the sale of property and bonds, and with any other money in my estate, after all just debts are paid, to make the following disposition of same as far as possible while funds permit in the following order to wit. No reduction to be made on those first mentioned, in order to distribute to the remainder.

'First: Five thousand and No/100 Dollars ($5000.00) to be placed in a trust fund on behalf of my niece Esther J. Lidston, and a monthly allowance of not to exceed Thirty dollars ($30.00) per month, and in the event of her death, any balance to be equally divided between her two sisters Phyllis Ann Cunningham, and Elsie Schaumburg.

'Second: To my niece Mrs. Phyllis Ann Cunningham One thousand dollars.

'Third: To my sister Mrs Annie Petty of Cheshunt, England, One thousand dollars.

'Fourth: To my grand nephew Robert Murray Cunningham, One thousand dollars.

'Fifth: To my nephew Philip Lidston of London, England, one thousand dollars.

'Sixth: To my sister Mary Coyle of London England, one thousand dollars.

'Seventh: To my niece Winifred Bacon of Surrey England One thousand dollars.

'Eighth: To my brother Walter B. Lidston of London England, One thousand dollars.

' I further direct my Executor dispose of any balance after the aforementioned gifts have been paid according to his wise discretion.' (Italics ours.)

The executor, Robert P. Cunningham, is the husband of Phyllis Ann Cunningham, who is a niece of the decedent Charles Lidston and one of the legatees named in his will. Mr. Cunningham had been intimately acquainted with the decedent for about forty years immediately prior to the latter's death, and for a considerable period of time the two men had been employed in the same insurance office. They visited each other frequently, their homes being only about a block and a half apart. The decedent talked confidentially with Cunningham many times concerning the things he wished to have done, with respect to his property, after his death. His particular concern was for his niece Esther Lidston, who is now approximately forty-eight years of age and apparently in good physical health, but who, unfortunately, is intellectually undeveloped, her mentality approximating that of a twelve-year-old child.

It appears that Esther Lidston had lived in decedent's home nearly all of her life. Her father had also lived there Before his death, which occurred about three years prior to the death of Charles Lidston, the testator. Esther Lidston's only close relatives are her two sisters, Phyllis Ann Cunningham and Elsie Schaumburg, the latter of whom resides in Chicago, Illinois. Mrs. Schaumburg is well off financially and for that reason, apparently, the decedent did not bequeath her any specific legacy.

In his conversation with Mr. Cunningham, decedent stated that he had made provision for Esther in his will and requested Cunningham to carry such provision into effect, which Cunningham agreed to do.

Charles Lidston died October 12, 1946, without wife or child, and shortly thereafter his will was admitted to probate. In due course the executor filed his final account and petition for distribution. In his petition, the executor stated that he interpreted the provisions of the residuary clause of the will to mean 'that the language mentioned is a valid gift and disposal of the residue of the decedent's estate to Robert P. Cunningham, executor to be paid out according to the discretion of the said executor.' Immediately following this pronouncement of his interpretation appears the statement by the executor in his petition 'that the said Robert P. Cunningham intends to exercise his discretion as provided in said will by dividing the residue of this estate into 3 equal portions: One to go to Phyllis Ann Cunningham, one to Esther J. Lidston and one to Elsie Schaumburg.'

The reason assigned by the executor for his intention so to exercise his discretion was that if it should ever become necessary to make provision for the care of Esther Lidston beyond the means provided for her in the will, that would probably have to be done by her two sister, Phyllis Ann Cunningham and Elsie Schaumburg.

The executor further stated in his petition that he also interpreted the will to mean that the eight specific bequests above mentioned should be free of inheritance tax, and that such tax on those items should be paid out of the residuary estate.

In the prayer of his petition the executor asked that his interpretation of the will be approved by the court and that the estate be distributed accordingly.

The state filed its appearance in the case, contending that, under the executor's interpretation of the will, a considerable portion of the estate would pass to Mr. Cunningham as a 'class C beneficiary,' and the state would thus be entitled to a larger amount of inheritance tax than it would receive under a tentative interpretation made by the trial court at a previous partial hearing. In view, also, of the trial court's tentative interpretation, a guardian ad litem was appointed for two minors who were not named in the will but who would be entitled to a portion of the residuary estate, if the trial court should adhere to its original opinion. The guardian ad litem appeared and filed his objections to distribution of the estate in the manner prayed for by the executor.

After a hearing on the matter, the trial court entered its final decree of distribution, wherein it found and held (1) that the language used by the testator in his will constituted a full and complete testamentary disposition of that portion of the decedent's estate comprehended in the eight bequests therein set forth; (2) that all inheritance taxes should be paid out of the residuary estate; but (3) that the residuary clause of the will was not a legal testamentary devise or bequest, that its language was indefinite, and that, for these reasons, the decedent should be regarded as having died intestate as to that portion of his estate.

The executor and the state of Washington have appealed.

The question presented by the two appeals is whether the language of the residuary clause of the will, as hereinabove set forth, is sufficient to constitute a valid testamentary disposition of the residuary estate, or whether, on the contrary, because of the insufficiency of the language for that purpose, this court must now hold that the decedent died intestate as to that portion of his estate.

A will, as defined by Blackstone and other authorities, is the legal declaration of a man's intentions, which he wills to be performed after his death, and all definitions of the term embody the idea that it is a means of disposing of one's property, to take effect after the death of the testator.

The fundamental rule, in the construction of wills, is that the intention of the testator is the controlling factor, and it therefore becomes the duty of the court to ascertain, if possible, from the terms of the will itself, the true intent of the testator and give it effect, if legally permissible. In re Phillips' Estate, 193 Wash. 194, 74 P.2d 1015; In re Elliott's Estate, 22 Wash.2d 334 156 P.2d 427, 157 A.L.R. 1335; In re Hamilton's Estate, 26 Wash.2d 363, 174 P.2d 301; Horton v. Board of...