In re Long's Estate

• Decision Date: 28 April 1937
• Docket Number: 26312.
• Citation: 190 Wash. 196,67 P.2d 331
• Court: Washington Supreme Court
• Parties: In re LONG'S ESTATE. v. REMSBERG. STATE

67 P.2d 331

190 Wash. 196

In re LONG'S ESTATE.

STATE v. REMSBERG.

No. 26312.

Supreme Court of Washington

April 28, 1937

Department 1.

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

Proceeding in the matter of the estate of Margaret Long, deceased wherein the State of Washington, by William H. Pemberton Supervisor of the Inheritance Tax and Escheat Division objected to the final account of C. E. Remsberg, executor of the estate of Martha Long, deceased. From an order approving the final account, the Supervisor of the Inheritance Tax and Escheat Division appeals.

Reversed and cause remanded.

William H. Pemberton and Charles Snyder, both of Olympia, for appellant.

C. E. Remsberg and Andrew J. Balliet, both of Seattle, for respondent.

MAIN, Justice.

The question in this case is whether a bequest in a will is valid.

Martha Long died in Seattle, August 12, 1935, testate. She had made her will on the previous January 26. At the time of making her will, the testatrix was eighty-three years of age. After making certain recitals in the will, she bequeathed and devised to her executor, named therein, one half of her estate, and the other half, as recited in the will: 'I hereby give, devise and bequeath to that person, or those persons who shall have rendered to me the greatest service in my declining months or years, the name or names of whom shall be selected and determined by my executor hereinafter named my intent being to reward the person or persons who care for me most when I grow helpless in my last sickness, the name or names of whom I cannot now give.'

It will be observed that, by this bequest, the testatrix delegated to the executor the right or power to select the beneficiary as the one who had rendered to her the greatest service in her declining months or years, and especially the person or persons who care most for her when she grows helpless, and especially 'when I grow helpless in my last sickness, the name or names of whom I cannot now give.'

The will was probated. The estate consisted of money in a bank in Seattle in the total amount of $1,024. In course of time, the executor made his final account, and recited therein that he had 'selected and determined that said Mrs. Agnes McKellar is the person who cared for deceased most during her last sickness and is entitled under the will of deceased to 'the other half' of her estate.' The final account of the executor, including his selection of Mrs. McKellar as the one to receive the 'other half' of the estate, was approved by the court, from which order the supervisor of inheritance tax and escheat division of this state appealed.

As above indicated, the question is whether a bequest, which leaves to the executor the right to select the beneficiary, is valid. It is a universal rule that the courts will seek for, and give effect to, the testator's or testatrix' intention, if it be lawful. Denton v. Schneider, 80 Wash. 506, 142 P. 9; Shufeldt v. Shufeldt, 130 Wash. 253, 227 P. 6. It is also a rule, of which there appears to be no disapproval, that a bequest which by its terms may be applied to objects which are not charitable in the legal sense, and to persons not defined by name or by class, is too indefinite to be carried out. Nichols v. Allen, 130 Mass. 211, 39 Am.Rep. 445; 26 R.C.L., p. 1189; Clark v. Campbell, 82 N.H. 281, 133 A. 166, 45 A.L.R. 1433; Tilden v. Green, 130 N.Y. 29, 28 N.E. 880, 14 L.R.A. 33, 27 Am.St.Rep. 487; In re Williams' Estate, 167 Wash. 524, 10 P.2d 219; In re Morton's Estate (Wish.) 61 P.2d 1309.

Where a bequest or a devise disposes of funds for purposes other than charitable, and leaves the question of whether it is to be devoted to charitable purposes or to other uses, noncharitable, entirely to the discretion of the executor or executrix, the bequest or devise is not lawful. In re Estate of Sutro, 155 Cal. 727, 102 P. 920; Mason v. Perry, 22 R.I. 475, 48 A. 671.

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