In re De Lion's Estate

• Decision Date: 14 August 1947
• Docket Number: 30101.
• Citation: 28 Wn.2d 649,183 P.2d 995
• Court: Washington Supreme Court
• Parties: In re DE LION'S ESTATE. v. OLD NAT. BANK et al. ROYCE

183 P.2d 995

28 Wn.2d 649

In re DE LION'S ESTATE.

ROYCE v. OLD NAT. BANK et al.

No. 30101.

Supreme Court of Washington

August 14, 1947

Department 1

Rehearing Denied Sept. 19, 1947.

Proceeding in the matter of the estate of R. Walter De Lion, deceased for probate of decedent's will. From an order denying a petition contesting the rejection of the will for probate James Emmett Royce, as guardian ad litem for Louisa Ann Virginia De Lion, appeals, opposed by the Old National Bank as administrator, and another.

Order affirmed.

Appeal from Superior Court, Spokane County; Charles W. Greeough judge.

Roy A Redfield, of Spokane, for appellants.

Cannon, McKevitt & Fraser, and Frank J. Blade, all of Spokane, for respondents.

SCHWELLENBACH, Justice.

This is an appeal from an order denying a petition contesting the rejection of a will for probate.

R Walter DeLion had been married twice. There was born the issue of the first marriage, one daughter, Audrey, who at the time of the hearing was an adult and married, the wife of Gordon D. Berg. Of the second marriage, he had one daughter, Louisa, who at the time of the hearing was fifteen years of age.

In 1938 Mr. DeLion obtained a divorce from his second wife, and was awarded the custody of Louisa. Mrs. DeLion later married Dr. Green (whom DeLion blamed for breaking up his home) and moved to California.

Mr. DeLion showered all of his affections upon this younger girl. On December 14. 1939, he deposited a will in Louisa's favor with the Old National Bank in Spokane. On the same day he created with the bank a living trust for her benefit, covering certain real property owned by him. The will was withdrawn February 26, 1942. On February 28, 1942, he filed a supplemental trust agreement, and a new will was deposited March 2, 1942, in which it provided that Louisa should be placed in Mrs. Logsdon's (his former wife's sister) care in case of his death.

In the summer of 1945, Louisa went to visit her aunt, Mrs. Logsdon, in Boise, Idaho. While there her mother and Dr. Green also visited Mrs. Logsdon. Upon Louisa's return to Spokane, she informed her father of her desire to live with her mother. To dissuade her, he took her on a trip to Canada, but it was to no avail; her mind was made up. It was then agreed that she would go to her mother for the school year, coming home for Christmas, and returning for the summer. It was distinctly understood that he was not releasing her custody, which had been granted to him in the divorce hearing.

Louisa left that fall to go to her mother in California. Mr. DeLion was heartbroken over her going, and would speak of his troubles with anyone who would listen. Shortly after Louisa left, Mr. DeLion decided to revoke the living trust, since she was being taken care of by her mother. On October 15, 1945, he went to the bank and revoked the living trust, and at the same time withdrew his will. Later various people saw him working on some papers in his apartment. He explained that he was working on his will which he said was being help up because he was attempting to sell some of his property. He died suddenly on November 25, 1945. In his apartment were found the following three documents, which were taken to the office of L. Vincent Donahue, Mr. DeLion's attorney, and which were later introduced in this hearing as exhibits Nos. 1, 2, and 3 respectively. The words, 'O. K. down to blue line R. W. DeLion,' in exhibit No. 1, and all of exhibits Nos. 2 and 3 were written in ink in DeLion's handwriting. Paragraphs 3 and 4 of the will were crossed off with a blue pencil. ^[1]

Exhibit No. 1

'Last Will and Testament of R. Walter DeLion

'I, R. Walter DeLion, of Spokane, Washington, being of sound and disposing mind and memory and not laboring under the duress, menace, fraud or undue influence of any person or persons whomsoever, do hereby make, publish and declare this my last Will and Testament, hereby revoking any and all other Wills and Testaments by me made.

'At the time of making this my Last Will and Testament, I am an unmarried man and I have in mind my married daughter, Audrey DeLion Berg.

'First: It is my will and I direct that all of my just debts, expenses of my last sickness and funeral expenses by paid out of my estate and that I be given a conservative funeral, and it is my wish, if possible, that I be buried in the Elks' Rest of Spokane Lodge No. 228, of which I am a member and I desire to have used in connection with said burial expense, a Four Hundred Dollar Funeral benefit payable from Local 185 International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada.

'Second: I give, devise, and bequeath unto my daughter, Audrey DeLion Berg, all interest I have in a certain Sales Agreement entered into on the 22nd day of September, 1941 between Anchor Securities Company, a corporation as vendor and myself as purchaser, of the following property:

'The West thirty-five (35) feet of Lot (12) in Block Thirteen (13), Chamberlin's Addition to Spokane Falls, now Spokane, and in the event that I acquire title to said property, then I desire that said property be given to my said daughter Audrey DeLion Berg.

O.K. down to blue lines

R. W. DeLION

'Third: I hereby nominate and appoint The Old National Bank of Spokane, Washington, as Executor of this, my Last Will and Testament and direct that said Executor serve without bonds and without the intervention of the probate court, after first complying with the statutes of the State of Washington with reference to the administration of estates.

'Fourth: All the rest, residue and remainder of my estate of every kind, character and description and wherever situated I give, devise and bequeath unto The Old National Bank of Spokane Washington as trustee for the following purposes, to-wit:

'I desire my said trustee in the event of my death to manage, sell, invest, re-invest any and all property of said trust estate in its discretion for the best interests of said trust estate; it being my desire that the powers granted said trustees be sufficiently broad to cover any and every contingency that may arise and leave no question over which to litigate with reference to the handling of said trust estate.

'I hereby give said trustee full authority to execute any transfer, conveyances, assignments, mortgages, agreements, or other documents which it may be required to execute in connection with the real or personal property of said trust estate and which may be necessary for the proper handling of said trust estate under the provisions of this Will.

'Said trustee is further authorized to rent, lease, mortgage or sell any real or personal property which may become a part of this trust estate and to expend such sums from the trust fund as it might deem advisable for the protection, conservation and maintenance of any and all of the trust property, charging such expenditures against the income or principal as it may deem proper.

'SAID TRUST FUND IS TO BE HELD AND USED IN THE FOLLOWING MANNER:

'(a) It is my desire that said trust fund be used wholly for the maintenance, education and support of my daughter, Louisa Ann Virginia DeLion, and my said trustee shall have the right in its sole and uncontrolled discretion at any time and from time to time to pay over to my daughter, Louisa Ann Virginia DeLion, such portions of the principal and income of the trust estate as the Trustee may deem necessary or proper for the support and welfare of my daughter, Louisa Ann Virginia DeLion until such time as she reaches the age of twenty-five (25) years, at which time I desire that my entire trust estate be distributed to her and it is my desire that in the event of my decease, that my daughter, Louisa Ann Virginia DeLion be sent to her aunt, Mrs. R. M. Logsdon, residing at 421 Mountainview Drive, Boise, Idaho who has expressed a desire and willingness to have and care for her and I have instructed my trustee to make proper allowances to her for my daughter's care.

'(b) In the event that my daughter, Louisa Ann Virginia DeLion should predecease me or should die Before the distribution of my trust estate to her, then in that event, it is my desire and I direct that my entire trust estate be distributed to my daughter, Audrey DeLion Berg.

'No part of the principal of the Trust Estate, and no part of the net income herein described, shall be by any beneficiary alienated, pledged, hypothecated, transferred, assigned, coveyed, encumbered or otherwise disposed of while in the hands of the Trustee, nor shall the principal or net income be subject to any lien, by judgment, contract, or otherwise, while in the hands of the Trustee. In the event of any alienation, pledge, hypothecation, transfer, assignment, conveyance or attempted encumberance or disposal of any of the principal or net income while in the hands of the Trustee, the Trustee is anthorized and directed not to pay over any portion, or portions, of the principal or net income so sought to be alienated, hypothecated, transferred, pledged, assigned, conveyed or otherwise encumbered or disposed of, or upon which a lien is attempted to be placed, to the benefidiary entitled to receive the same, but in the exercise of its sole, sound and uncontrolled discretion to use or apply such portion, or portions, of principal or net income directly to, or for the uses hereinabove set forth, or to retain such portions as prmcipal or invested income, as will be for the best interests of the trust estate and the beneficiaries thereof. The purpose of this provision is to prevent any beneficiary from anticipating or transfering his interest herein prior to the time of actual distribution.

'The Trustee may employ such agents and counsel as are

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