In re Ridgway's Estate

• Decision Date: 21 April 1949
• Docket Number: 30731.
• Citation: 33 Wn.2d 249,205 P.2d 360
• Court: Washington Supreme Court
• Parties: In re RIDGWAY'S ESTATE. v. NAT. BANK OF COMMERCE OF SEATTLE et al. ST. CLAIR

205 P.2d 360

33 Wn.2d 249

In re RIDGWAY'S ESTATE.

ST. CLAIR v. NAT. BANK OF COMMERCE OF SEATTLE et al.

No. 30731.

Supreme Court of Washington

April 21, 1949

Department 1

Proceeding in the matter of the estate of Carl E. Ridgway, deceased, on the petition of Mary Martha Ridgway St. Clair, to take an intestate share of decedent's estate on the ground that she was not named or provided for in decedent's will opposed by National Bank of Commerce of Seattle, as executor of decedent's estate, and by Harold Ridgway. From a judgment allowing petitioner to take by intestate succession executor and individual opponent appeal.

Affirmed.

Appeal from Superior Court, King County; Robert M. Jones, judge.

Kellogg Reaugh & Smith, of Seattle, for appellants.

Holman & Sprague and Francis E. Holman, all of Seattle, for respondent.

MALLERY, Justice.

In 1905 or 1906 Carl E. Ridgway, the decedent herein, married Louise Alexander, in Indiana, and several months thereafter a daughter, Mary Martha, the petitioner and respondent herein was born. It is not denied that she is the child of the decedent. Six weeks after the birth of Mary Martha, the decedent left his wife and child and moved to Oregon where three years later he secured a default divorce. Subsequently the decedent remarried. Two children, Harold, one of the appellants, and Mary June, were the issue of his second marriage. Several years after Harold and Mary June were born the decedent secured a Washington divorce from their mother. Later he married Christel Ridgway who survived him. There was no issue of his third marriage.

The decedent had no communication with Mary Martha from the time he left her until his death. She remained in Indiana. Harold and Mary June knew of her as their half-sister but conversation about the Indiana family seems to have been suppressed by the decedent. The decedent died in Seattle December 16, 1946, nine days after he had executed a non-intervention will. The will was admitted to probate on December 21, 1946. On December 9, 1947, Mary Martha filed her petition alleging that she was the daughter of the decedent; that she was not named or provided for in his will; that, as to her, the decedent died intestate; and that under Rem.Rev.Stat. § 1402 she was entitled, as a matter of law, to share in her father's estate as if he had died intestate.

After a hearing, the trial court granted her petition and entered an order to that effect. From this order National Bank of Commerce, as executor, and Harold Ridgway appeal.

Appellants contend that the trial court erred in holding that Mary Martha was not named or provided for in the will and that Carl Ridgway died intestate as to her.

After certain specific bequests to Harold, Mary June and Christel, the will created two trusts. The named beneficiaries of these trusts were also Harold, Mary June and Christel. The only language in the instrument which is material to this case is paragraph D of Article VI which reads:

'If all the beneficiaries heretofore named or described herein die prior to the distribution in full of the trust or trusts hereunder, then at the death of such beneficiary who is the last to die, or in the event I survive all the said beneficiaries, then upon my death, the trust or trusts hereunder, or the undistributed portion or portions thereof, as the case may be, shall be paid and distributed to my then living legal heirs as determined in accordance with the then existing laws of the state of Washington which control the descent and distribution of intestate estates. (Italics ours.)

Mary Martha is not named or provided for in the will in any way unless, as appellants contend, she is named or provided for in the above italicized part of the will.

Rem.Rev.Stat. § 1402, P.P.C. 219-17, the effect of which the appellants seek to avoid, reads as follows:

'If any person make his last will and die leaving a child or children or descendants of such child or children not named or provided for in such will, although born after the making of such will or the death of the testator, every such testator, as to such child or children not named or provided for, shall be deemed to die intestate, and such child or children or their descendants shall be entitled to such proportion of the estate of the testator, real and personal, as if he had died intestate, and the same shall be assigned to them, and all the other heirs, devisees and legatees shall refund their proportional part.' (Italics ours.) Does the language of Article VI(D) sufficiently name or provide for Mary Martha so as to make the statute inapplicable?

In Gehlen v. Gehlen, 77 Wash. 17, 137 P. 312, 313, the court in construing the provision of a will which provided:

'* * * I make no provision for my children after my death, or any child which may hereafter be born, knowing that my said wife, who is their mother, will deal justly with them. * * *' stated the question on appeal to be:

'Can the children of a testator be disinherited by naming them as a class, or must they be named specifically by each of their individual names, or by terms of individual identification?'

The holding of the court in that case was as follows:

'It seems to us more consonant with the obvious purpose of the statute to hold that the naming of the children as a class, whether for the purpose of providing for them or for the purpose of disinheritance, when coupled with language conveying either intention, is such naming as to show that no child has been unintentionally overlooked, to avoid which contingency was the sole purpose of the statute.' (Italics ours.)

From this it appears that the naming of children under the statute need not be done by name exclusively but can be done by referring to them as children. In our other cases, typical language such as: 'the naming of the children as a class', is used which we think is synonymous with saying that the children constitute the class referred to and that no other person or classes of persons were intended to be included in the children's class under our decisions.

This appears from In re Bauer's Estate, 5 Wash.2d 165, 105 P.2d 11, 13, in which the language in the will was: 'Ray W. Bauer to make what disposition he see fit with at least one dollar to each heir', in which it was held:

'We are convinced, from careful study of the will now Before us, that in the light of the authorities it cannot be held that appellant was included within the words 'each heir', as contained in the will. The will contains no mention of appellant by name, nor does it contain the least reference to any child.'

Whether we look to evidence within the will as in Hill v. Hill, 7 Wash. 409, 35 P. 360; and In re Bauer's Estate, supra, or to evidence of surrounding circumstances, as In re Harper's Estate, 168 Wash. 98, 10 P.2d 991, 15 P.2d 1119; Donnelly v. National Bank of Washington, 27 Wash.2d 622, 179 P.2d 333; and In re Halle's Estate, 29 Wash.2d 624, 188 P.2d 684, it still does appear that the decedent intended to disinherit Mary Martha.

We therefore hold that the will has not n...