In re Nichols' Estate

• Citation: 102 Wash. 303,172 P. 1146
• Decision Date: 09 May 1918
• Docket Number: 14417.
• Court: Washington Supreme Court
• Parties: in re NICHOLS' ESTATE. v. IMUS. McDONALD

172 P. 1146

102 Wash. 303

in re NICHOLS' ESTATE.

McDONALD v. IMUS.

No. 14417.

Supreme Court of Washington

May 9, 1918

Department 1. Appeal from Superior Court, Spokane County; Hugo E Oswald, Judge.

Suit by Jessie F. McDonald, legatee under the will of William P Nichols, deceased, against E. N. Imus, executor of the estate of said deceased, to obtain a construction of a clause in the will of said deceased. From decision rendered, plaintiff appeals. Affirmed.

Roche &amp Onstine, of Spokane, for appellant.

Skuse & Merrill, of Spokane, for respondent.

FULLERTON J.

This is a proceeding instituted in the superior court of Spokane county to obtain a construction of a clause in the will of William P. Nichols, deceased. The case was heard in the lower court, and is before us upon an agreed statement of facts. The statement summarized shows the following:

(1) That William P. Nichols died on October 15, 1915, leaving estate in Spokane county, consisting of real and personal property, of the approximate value of $22,000.

(2) That he left a will bearing the date of November 6, 1912, which among others contained the following bequest: 'I also give and bequeath to Jessie F. McDonald of Spokane, provided she is legally divorced from her husband A. S. McDonald and still bears his name, the sum of one thousand dollars.'

(3) That the will was admitted to probate in Spokane county on October 26, 1915. That one E. N. Imus was named in the will as executor thereof and duly confirmed by the court as such. That the estate has been closed but not distributed, and that there now remain in the hands of the executor sufficient funds to pay all the legacies provided for in the will, including the legacy to the legatee Jessie F. McDonald.

(5) That after the death of the testator the legatee obtained a divorce from A. C. McDonald, and has not since remarried, and now bears the name of Jessie F. McDonald.

(6) That the testator, at the time of the execution of his will and at the time of his death, knew that the legatee was not divorced.

The trial court on the facts stipulated held that the legatee, because she did not occupy the status defined in the will, was not competent to take thereunder, and adjudged the legacy to have lapsed. From this conclusion the legatee has appealed.

It is the contention of appellant's learned counsel that the condition imposed on the taking effect of the legacy is one tending to induce the separation of husband and wife and to operate in restraint of marriage, and is thus void as against public policy;...