In re Peters' Estate

• Decision Date: 27 April 1918
• Docket Number: 14525.
• Citation: 172 P. 870,101 Wash. 572
• Court: Washington Supreme Court
• Parties: In re PETERS' ESTATE. v. PETERSON et al. NUHSE et al.

172 P. 870

101 Wash. 572

In re PETERS' ESTATE.

NUHSE et al. v. PETERSON et al.

No. 14525.

Supreme Court of Washington

April 27, 1918

Department 2. Appeal from Superior Court, Snohomish County; Guy C Alston, Judge.

Petition by John Nuhse and Henry Hoffman for the construction of the will of John J. Peters, deceased, against Mrs. Anna Peterson and Mrs. Mark Bartlett. To review the decree rendered petitioners appeal. Reversed and remanded.

Ellis C.J., dissenting.

G. W. Hinman, of Granite Falls, for appellants.

Peter Husby, of Everett, for respondents.

HOLCOMB, J.

This is a petition for the purpose of construing the clauses of a will. Part of paragraph 2 of the will is as follows:

'I hereby give and bequeath unto John Nuhse * * * also 40 acres lying between my northeast corner and the south line of John Nuhse property; also all property I own on the east side of the N.W. 1/4 of sec. 33, T. 31 N., R. 6 E., W. M.'

Paragraph 3:

'I hereby give and bequeath unto Henry Hoffman the S.E 1/4 of the S.W. 1/4 of sec. 33, T. 31 N., range 6 E., W. M., in Snohomish county, Washington.'

Paragraph 6:

'I hereby give, devise and bequeath unto Mrs Anna Peterson, of Tacoma, Washington, and Mrs. Mark Bartlett, of Seattle, Washington, the S.W. 1/4 of the S.W. 1/4 of sec. 33, T. 31 N., R. 6 E., W. M.; also all left of the N.W. 1/4 of the same section, township and range.'

It is conceded that the decedent owned only the southwest quarter of section 33, T. 31 N., R. 6 E., W. M., and that he properly devised the southeast quarter of the southwest quarter in paragraph 3 of his will and the southwest quarter of the southwest quarter of the section, etc. It is claimed by petitioners, and the trial court found, that for indefiniteness of description testator's will was a nullity as to the north 80 acres owned by him. For the purpose of clarity a plat of the section is set forth as has been admitted by the trial court in the record as follows:

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It is evident from reading the will that the testator intended to devise all his estate in different portions to different persons, although he did not express himself as clearly as should have been done.

'The testator's intention must be gathered from the language of the will, construing all the provisions together.' McCullough v. Lauman, 38 Wash. 227, 80 P. 441.

Now let us return to the clause 'also 40 acres lying between my northeast corner and the south line of John Nuhse property.' The home place of the testator was on the southeast quarter of the southwest quarter of the section. It seems plain that he intended to give the 40 acres between the northeast corner of his home place and the 40 acres south of the south line of John Nuhse, as John Nuhse's property was the entire northern boundary of the testator's property. Omitted words will be supplied in a will where it is evident the testator has not expressed himself as he intended. Butler v. Moore, 94 Ind. 359; Espitallier, Estate of (Cal.) 6 Cof. Prob. Dec. 299.

A court is bound to give that construction to a will which will effectuate the intention of the testator if such intention can be gathered from the terms of the will itself, and the intention is to be gathered from everything contained within the four corners of the instrument. In re Woodward's Estate, 84 Minn. 161, 86 N.W. 1004.

The other clauses read (to John Nuhse) 'also all property I own on the east side of the N.W. 1/4 of sec. 33, T. 31 N., R. 6 E., W. M.' (paragraph 2 of the will), and (to Mrs. Bartlett and Mrs. Peterson) 'also all left of the N.W. 1/4 of the same section, township and range' (paragraph 6 of will). A county road runs through the northwest quarter of the southwest quarter of testator's property in a northwesterly and southeasterly direction, as shown by the plat. The question is: Did the testator intend the portion on the east side of the road of the northwest 40 of his estate for Nuhse, or the east side of the northwest quarter of the section which he did not own, and further did he intend to devise to Bartlett and Peterson all that was left of the northwest forty of his estate or all that was left of the northwest quarter of the section, township and range, which he did not own? It seems plain that the testator did not express himself in apt words. Mistakes in writing descriptions are numerous; even the respondents in their brief (on page 8) used the words 'northeast quarter' three times when they intended the southwest quarter.

There was no residuary clause in the will, and the testator depended upon two attorneys to properly express his intentions to devise all his property. Should we hold that the contested clauses of the will are void, we would in effect hold that the testator did not intend to devise the north 80 acres of his estate. This should not be done contrary to the plain intent of the testator when it can be gathered from the wording of the will and the location and ownership of the estate.

'Where, upon examination of a will, taken as a whole, the intention of the testator appears clear, but its plain and definite purposes are endangered by inapt or inaccurate modes of expression, the court may, and it is its duty to, subordinate the language to the intention; it may reject words and limitations, supply or transpose them to get at the correct meaning.' Phillips v. Davies, 92 N.Y. 199; In re Miner, 146 N.Y. 121, 40 N.E. 788.

Alford v. Bennett, 279 Ill. 375, 117 N.E. 89, is a late case with similar misdescription in a will, and where the court construed the description in the will to be of the land that the devisor actually owned. The testator owned the northeast quarter of the northwest quarter of a section, but did not own any of the northeast quarter of the section. A devise to one daughter of the north 25 acres of the northeast quarter of the section, following a devise to another daughter of 15 acres 'off the south side of the northeast quarter of the northwest quarter' of the section, was a devise of the north 25 acres of the northeast quarter of the northwest quarter, being remaining land in the estate undisposed of by the testator, and the will containing no residuary clause.

The trial judge in his memorandum decision says:

'(1) That clause which read as follows: 'Also 40 acres lying between my northeast corner and the south line of John Nuhse's property; also all property I own on the east side of the northwest quarter of section thirty-three township thirty-one north, range six E. W. M.'--is extremely hard for me to construe.

'(2) I recognize the rule of law to be that the court should give effect to the intention of the testator if that can be

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