In re Myhren's Estate

• Decision Date: 26 February 1917
• Docket Number: 13578.
• Citation: In re Myhren's Estate, 163 P. 388, 95 Wash. 101 (Wash. 1917)
• Court: Washington Supreme Court
• Parties: In re MYHREN'S ESTATE. v. MYHREN. MYHREN

163 P. 388

95 Wash. 101

In re MYHREN'S ESTATE.

MYHREN v. MYHREN.

No. 13578.

Supreme Court of Washington

February 26, 1917

Department 2. Appeal from Superior Court, Spokane County; E. H Sullivan, Judge.

Proceeding in the matter of the Estate of Peter A. Myhren, deceased, by Maria Myhren, executrix of said decedent, against Helen A Myhren, executrix of Albert P. Myhren, deceased, and others. From the decree, said Helen A. Myhren, as executrix, appeals. Dismissed.

McCarthy, Edge & Davis and W. G. Boland, all of Spokane, for appellant.

Carl W Swanson and C. E. Ellis, both of Spokane, for respondent.

WEBSTER J.

This is an appeal from a decree in probate construing the last will and testament of Peder A. Myhren, deceased. Respondent moves to dismiss the appeal, and the pertinent facts are these: The testator was survived by his widow and executrix, Maria Myhren, and five adult children, viz. Edward Myhren, Elsie Myhren, Bertilde Erdman, née Myhren, Martin Myhren, an incompetent person who was represented in the proceeding by his guardian ad litem C. E. Ellis, and Albert P. Myhren, who subsequently died leaving as his survivors his widow and executrix, Helen A. Myhren, and a minor daughter, Doris Myhren, who was represented by her guardian ad litem Joseph McCarthy. All of the five above-named adult children are named as beneficiaries in the will. The estate consists wholly of community property. The provisions of the will which need be noticed are as follows:

'(2) I hereby give, devise, and bequeath the following described tracts of land: Lots 4 and 5 of Weger's sub-division of the southwest 1/4 of sec. 10 in township 24 N., of range 43 E. W. M., also beginning at a point on the section line 1438 feet west of the 1/4 sec. corner, between sections 10 and 15, township 24 N., range 43 E. W. M., thence west 522 feet to the county road; thence northwesterly along the said county road to the line between the north 1/2 and the south 1/2 of the southwest 1/4 of sec. 10; thence east on said line 1005 feet; and thence south parallel to the north and south center line of the said section to the place of beginning, containing 45 acres more or less, and being the farm and home at which I am residing at the present time, together with all the personal property which I may have and own at the time of my death, and all title thereto, to my dear and beloved wife Maria Myhren for her life, subject, however, to the following conditions, namely; that the said farm and home shall not be sold during her life, and that in event of sale the proceeds thereof shall be distributed as provided in paragraph three of this will, and further provided that she shall pay out of my estate, and the profits and accumulations thereof, all the legitimate and necessary living expenses of each and all of my children, hereinafter named, who shall live and reside with her during her life on the said farm and render their services for the use and benefit of my estate; and the remainder over of my said estate shall go to my son Albert subject to and upon the following conditions (1) that he shall pay to each of the following named of my children, namely, Edward, Bertilde, and Elsie the sum of two hundred and fifty dollars, within one year after the date of the death of my wife, and in case that my wife does not survive me, then within one year after the date of my death, and the said bequests shall be a lien on the said remainder from the date on which the years time of payment begins to run and until paid; (2) provided further that my said son Albert shall keep and have residing with him, and provide all the necessaries of life for my son Martin during the life of the latter, said Martin being unable and incompetent to care and provide for himself, and in the event of failure of the said Albert to so provide for him, or in the event of death of said Albert during the life of said Martin, then, and in either of said events, one-half of said real estate remainder hereby devised to the said Albert shall immediately go to and vest in the said Martin, and shall be controlled and managed by his guardian hereinafter named.

'(3) In the event that upon my death my executors and all parties interested and concerned in my estate shall deem it best to sell and dispose of all the property and convert the same into money, then, and in that event, one-half of the said money shall go to my wife Maria Myhren; one-fourth of said money shall go to my son Albert; and the remaining one-fourth shall be equally distributed among the following of my children, namely, Edward, Bertilde, and Elsie, share and share alike. In the event that my wife does not survive me, then three-eighths of said money shall go to my son Albert, and three-eighths to my son Martin; and the remaining one-fourth shall be distributed equally among the following of my children, Edward, Bertilde, and Elsie, share and share alike.'

During the course of administration of the estate Maria Myhren, the widow and executrix of Peder A. Myhren, filed in the probate proceeding a petition setting forth that the estate could not be distributed until the will had been construed by the court, and in her individual right asserted that the will should be construed as operating only upon the community interest of the testator in and to the property described in the will, and that she was the owner in fee of her community interest in the property free from the operation of the provisions of the will. The questions presented by the petition were whether the testator had undertaken by his will to dispose of the entire community property as though it were his separate estate, and, if so, whether the widow was put to an election between her right under the law to her community interest in the property and her rights as beneficiary under the will. Upon the filing of the petition the court made and entered an order fixing a time for hearing the same, and directed that a citation issue and be served upon all of the above-named parties. The citation was in the form prescribed by section 1281, Rem. Code, and was duly served on all the parties as directed by the court. At the time designated for the hearing all of the parties were present in court either in person or by counsel, or both, the hearing was duly had, and thereafter the court made findings of fact and conclusions of law, and entered a decree to the effect that the will of Peder A. Myhren operated only upon his community interest in the property, and that the widow was not required to elect. The decree contains the following recital of jurisdictional facts:

'This matter came regularly on for hearing on the 14th day of January, 1916, on petition of Maria Myhren, one of the executors named in the said will, she also being the widow of the above deceased. The said Maria Myhren, executrix and widow of said deceased, appeared in person and by the attorney in said estate Carl W.

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