In re Lotzgesell's Estate

• Decision Date: 08 March 1911
• Citation: 62 Wash. 352,113 P. 1105
• Court: Washington Supreme Court
• Parties: In re LOTZGESELL'S ESTATE. v. CYDELL. LOTZGESELL et al.

113 P. 1105

62 Wash. 352

In re LOTZGESELL'S ESTATE.

LOTZGESELL et al. v. CYDELL.

Supreme Court of Washington

March 8, 1911

Department 2. Appeal from Superior Court, Clallam County; Lester Still Judge.

Action by George Lotzgesell and another, as executors, etc., against Henrietta Cydell, as executrix, etc. From a decree of settlement and distribution, plaintiffs appeal. Modified and affirmed.

A. W Buddress, for appellants.

Morris Southard & Shipley and James Stewart, for respondent.

MORRIS J.

The questions of law involved in this appeal arise from the construction of the last will and testament of the deceased, and the decree of final settlement and distribution as made by the court below. George Henry Lotzgesell died February 16, 1907, leaving a last will and testament, duly attested by subscribing witnesses, as follows:

'I, George Henry Lotzgesell, of Dungeness, county of Clallam, state of Washington, of the age of 78 years, and being of sound and disposing mind and not under any restraint or the influence of any one whatever, do make, publish and declare this my last will and testament in the manner following: That is to say:

'First, I direct that my body be buried with proper regard to my station in life.

'Second. I direct that my funeral expenses and all other just debts shall be paid by my sons George Lotzgesell and Frank Lotzgesell and my daughter Henrietta Cydell.

'Third. I give and bequeath to my daughter Catherine Roberts, of Port Angeles, Wash., the sum of fifty ($50.00) dollars.

'Fourth. I give and bequeath to my daughter Anna Pilcher, of Seattle, Wash., the sum of fifty ($50.00) dollars.

'Fifth. I give and bequeath to my daughter Emma Hansen, of Dungeness, Wash., the sum of fifty ($50.00) dollars.

'Sixth. I give and bequeath to my daughter Lillie Alexander, of Matsqui, British Columbia, the sum of fifty ($50.00) dollars.

'Seventh. I give and dequeath to my daughter Henrietta Cydell, of Dungeness, Wash., the sum of fifty ($50.00) dollars.

'Eighth. I hereby appoint my beloved sons George Lotzgesell and Frank Lotzgesell and my beloved daughter Henrietta Cydell executors of my estate without bonds, and they are hereby empowered to carry out all the provisions of this my last will and testament.

'Ninth. After and immediately following my death, my homestead farm, consisting of one hundred and thirty-nine acres, being in the northwest quarter of section two, township thirty, range four west, together with the east half of the northeast quarter of section three, township thirty, range four west, consisting of eighty acres; also about seventy acres more or less, in the south-west quarter of section thirty-five, township thirty-one, range four west, shall be occupied, conducted and farmed by my beloved daughter Henrietta Cydell and my son-in-law Frederick G. Cydell upon the following conditions:

'They shall provide a good and comfortable home for my son John Lotzgesell so long as he shall live and shall pay each year to my son John Lotzgesell the sum of two hundred dollars; they shall purchase for him what clothes he requires and give him, in addition, his board in a good and substantial manner.

'They shall also pay all taxes year by year on the said property and all other expenses towards its maintenance, and they shall maintain the said property and improvements in a good and substantial manner, so that its value shall not deteriorate.

'Tenth. After the death of my son John Lotzgesell the said homestead farm and the two pieces of land adjoining as described and specified above, shall become the sole and undisputed property of my beloved sons George Lotzgesell and Frank Lotzgesell or their heirs, to be divided into two equal pieces.

'Eleventh. All the live stock, consisting of horses, cattle and hogs, together with all agricultural and dairy implements, household furniture and effects, and in fact all personal property, shall become the individual property of my beloved daughter Henrietta Cydell and my son-in-law Frederick G. Cydell.

'Twelfth. I furthermore desire to state in this will that in years and times past I have at various times given to my daughters, Catherine Roberts, Anna Pilcher, Emma Hansen, and Lillie Alexander, moneys and real estate as parts and portion of their inheritance, and I now command that they shall not complain.

'Thirteenth. It is furthermore my will and request that my sons George and Frank Lotzgesell and my daughter Henrietta Cydell shall be the guardians without bonds of my son John Lotzgesell, and as such shall, during his life, look after his every comfort and happiness.

'Lastly. I further direct that the aforesaid named executors shall deliver deeds and bills of sale without an order of the court for that purpose, but shall proceed summarily to administer upon and settle said estate as herein provided, and all without the intervention, supervision, order or decree of any court or judge, except in so far as shall be imperatively required by the laws of the state.

'In witness whereof I have hereunto set my hand and seal this fifteenth day of February, 1907. George Henry Lotzgesell.'

The executors and executrix therein named entered upon the discharge of their duties, when differences arose as to the proper construction of the will and the allowance of claims. These differences were submitted to the court, resulting in the decree appealed from. It will only be necessary to refer to the decree in so far as its provisions are affected by the appeal.

Certain allowances were made by the court, aggregating $1,610.60, which is charged against the executors and executrix individually and in equal proportion, after giving credit in the amounts paid by each. The court rejected a claim for the allowance of $1,079.50, claimed to have been paid by the executors in defending an action brought by Anna Pilcher and Lillie Alexander, daughters of the deceased, against the other heirs, and including the parties herein, in which the plaintiffs, claiming as heirs of their mother, sought an accounting and partition as against the defendants. This action was decided adversely to the plaintiffs; the opinion and judgment of this court being found in Pilcher v. Lotzgesell, 57 Wash. 471, 107 P. 340. This order of disallowance is one of the errors suggested by the appeal, and will be hereafter referred to. In making the allowance of the $1,610.60 item, which includes $250 bequeathed to the five daughters in sums of $50 each, under the third, fourth, fifth, sixth, and seventh clauses of the will, and $102.90, state inheritance tax, the court held, as before referred to, that these charges should be borne by George Lotzgesell, Frank Lotzgesell, and Henrietta Cydell individually, under the second clause of the will, wherein he directed that his just debts should be paid by those three persons as the chief beneficiaries under the will, which order is also included in the errors assigned. On the day previous to his death and the same day the will was executed, the testator handed to Henrietta Cydell the sum of $6,245.30, no specific mention of which is made in the will, and appellants contend that as to this money testator died intestate; while the court found that it passed to Frederick G. Cydell and Henrietta Cydell under the eleventh clause of the will, being included in the words 'and in fact all personal property,' which ruling is the third and last error assigned.

Referring now to the first assignment of error in the disallowance of the expenses incurred in the Pilcher suit, we sustain the ruling below. The questions involved in that action were purely ones of heirship; the defendants being called upon to account and to partition to and with the plaintiffs their distributive share of the property, real and personal, alleged to have been owned by the mother. Any expense incurred by appellants in that action was in their own interest as heirs, and not as executors of the father's estate. Such expenses were not properly chargeable against the estate, and were properly disallowed. Wilbur v. Wilbur, 17 Wash. 683, 50 P. 589; Koppenhaffer v. Isaacs, 7 Watts (Pa.) 170; Mumper's Appeal, 3 Watts & Serg. (Pa.) 441; Scott's Estate, 9 Watts & Serg. (Pa.) 98; Yerkes' Appeal, 99 Pa. 401; Titlow's Estate, 163 Pa. 35, 29 A. 758. The inheritance tax, while not a debt of the testator, was properly chargeable to the beneficiaries.

The second and third assignments will be treated together, as they call for a construction of the will; the main question in this connection being whether the testator died intestate as to the $6,245.30 cash, or did it pass to the Cydells under the eleventh clause. A will should be construed so as to give effect to the desire and intention of the testator, in so far as it is possible to do so from the language used; and in placing a construction upon the will the courts will avoid and prevent intestacy, if reasonably possible without doing violence to the evident intent of the instrument. In looking for this intent, not only the language used, but the entire purpose and scheme of the instrument must be given effect, and we must look, not only to the property disposed of, but to the surroundings, the persons named as devisees or legatees, their relation to the testator, and what the testator evidently had in mind in employing the language used. In re Koch's Estate, 8 Cal. App. 90, 96 P. 100. 'Again, it is well settled that, in the construction of last wills and testament, the scope and import of the entire instrument are to be considered for the purpose of discovering the intention of the testator, and that such intention, when discovered, is of paramount and controlling influence.' Williams v. Williams, 18 Tenn. 20. In looking for this...