In re Tiemens' Estate

• Citation: 277 P. 385,152 Wash. 82
• Decision Date: 02 May 1929
• Docket Number: 21588.
• Court: Washington Supreme Court
• Parties: In re TIEMENS' ESTATE.

277 P. 385

152 Wash. 82

In re TIEMENS' ESTATE.

No. 21588.

Supreme Court of Washington

May 2, 1929

Department 1.

Appeal from Superior Court, Cowlitz County; Homer Kirby, Judge.

Proceeding by William Tiemens to construe a certain provision in the will of G. J. Tiemens, deceased. From an adverse judgment petitioner appeals. Affirmed.

Kohlhase & Cooperman, of Kelso, for appellant.

William Stuart, of Kelso, for respondent.

HOLCOMB J.

G. J Tiemens died in Cowlitz county leaving a last will and testament disposing of his estate. The will was made in June 1923, when the testator was 85 years of age. He left surviving him four children and several grandchildren.

After certain bequests to the two children of a deceased son, to each of his three children, other than appellant, he bequeathed one-third of the residue of his estate. To his son William Tiemens, appellant here, he made the following bequest: 'I hereby give, devise and bequeath unto my beloved son, William Tiemens, the sum of Two Thousand Dollars, the same to be held in trust for him, by my executors hereinafter named, provided that the interest derived from the said sum shall be paid yearly to my said son, William Tiemens, and provided that in the event he shall become a widower, or may hereafter be divorced from his present wife then as a solace to him in the event of such bereavement, and sorrow, my said executors are hereby authorized to deliver to him, this bequest in full and to terminate the said trust, and further provided that in the event my said son, William Tiemens, may die while still married to Wilhemena Tiemens and leaving her surviving him as his widow, then the said sum of Two Thousand Dollars shall be paid to his daughter, (my granddaughter) Bertha Tiemens immediately,' etc.

The matter came before the lower court on motion of William Tiemens to construe that paragraph of the will. It was contended there, and is contended here, that the condition contained in that clause of the will is void and the bequest is absolute.

The contention of appellant is that the condition annexed to the bequest is void as contrary to good morals and against public policy, wherefore the gift is absolute.

Testimony was introduced tending to show the relations between the testator and the wife of William Tiemens to the effect that they were not on good terms; that Wilhemena Tiemens had once separated from her husband, about two months after their marriage; and that the testator then insisted that William Tiemens should procure a divorce from his wife, which he refused to do. William and Wilhemena Tiemans were married in 1911. Marital difficulties arose between them, and the wife left her husband for about six weeks and then returned to him.

Appellant contends that the obvious intention of the testator in making the condition annexed to the bequest was to promote and facilitate a divorce between them.

Respondents contend that the testator, being well acquainted with the trouble existing between his son and his wife, being aware of the fact that Mrs. Tiemens had left his son at one time, as the result of some difficulty, and believing that in all probability she would abandon him again if she came into possession of any considerable amount of money, was justified in making the bequest as he did, so that the funds would not be dissipated by the wife, but would be preserved for the use of the son.

The parties agree that courts must be governed by the rule that the true intent and meaning of the testator in all matters brought before the courts, concerning the execution of last wills, shall prevail.

Courts receive extrinsic evidence of circumstances and surroundings of the testator and the objects of his bounty, not to defeat, but to aid in determining, the testator's intention, and only if such intention be uncertain. 1 Schouler on Wills, Executors and Administrators (5th Ed.) § 572.

A preponderance of the testimony received by the trial court shows that there was no intention upon the part of the testator to cause or facilitate a divorce between his son and his wife.

The clause of the will in question does not expressly so provide.

Texts and cases cited by appellant to the effect that a condition in a will which shall constitute an inducement to separate, or to obtain a divorce, or in restraint of marriage, is void as against public policy, do not seem to apply to the provisions of this will.

It is true that in New York the rule has been rigidly adhered to from early times that any condition attached to a bequest in a will which tended to encourage divorce or to live separate and apart, by husband and wife, would be held void as against public policy and good morals. Most of the wills in the cases cited, however, contain much more explicit provisions to effect such purpose than the provision of this will. When relating to facilitation of divorce, the public policy of New York has long limited divorce grounds more strictly than most states, which affects the question. As to encouragement to live apart, without divorce, that conduces to immorality, which all courts condemn. That is not the provision of the will before us.

This court has held, however, that a condition in a will precedent on a legal divorce, is valid. In re Nichols' Estate, 102 Wash. 303, 172 P. 1146, L. R. A. 1918E, 986. The will in that case contained this conditional bequest: 'I also give and bequeath to Jessie F. McDonald, of Spokane, provided she is legally divorced from her husband...