In re Williams' Estate

• Decision Date: 08 April 1932
• Docket Number: 23501.
• Citation: 167 Wash. 524,10 P.2d 219
• Court: Washington Supreme Court
• Parties: In re WILLIAMS' ESTATE. v. McCORD et al. WALSH et al.

10 P.2d 219

167 Wash. 524

In re WILLIAMS' ESTATE.

WALSH et al. v. McCORD et al.

No. 23501.

Supreme Court of Washington, En Banc.

April 8, 1932

Appeal from Superior Court, King County; Robert S. Macfarlane Judge.

Final accounting and petition for distribution by E. S. McCord and Howard Cosgrove, executors and trustees of the estate of O B. Williams, deceased, in which W. E. Walsh and others filed objections, consolidated with the case of William W. Woodcock and others, against E. S. McCord and Howard Cosgrove executors, and others. During the pendency of the litigation E. S. McCord died, and Howard Cosgrove appeared as the surviving trustee and executor. From the decree, W. E. Walsh and others, William W. Woodcock and others, Hannah E. Williams, widow of O. B. Williams, and Winifred I. Williams, separately appeal.

Remanded, with directions.

Edgar C. Snyder, Bogle, Bogle & Gates, Smith, Matthews & Dunn, J. Will Jones, Tucker & Tucker, Pemberton & Robinson, and Landon & Landon, all of Seattle, for appellants.

Cosgrove & Terhune, of Seattle, for respondent.

HERMAN J.

This matter is presented to the court by separate appeals of Hannah E. Williams, widow of O. B. Williams, deceased, and three different groups of claimants under his will. The hearing upon the petition for distribution was consolidated with the cause of William W. Woodcock et al. v. E. S. McCord and Howard Cosgrove, Executors, et al., a proceeding previously instituted by a group of employees of decedent against the executors and trustees under the will of O. B. Williams. Since the filing of the last- mentioned suit, Mr. McCord has died, and the surviving trustee and executor, Mr. Cosgrove, is appearing as one of the respondents. The other respondent, Joseph Lloyd Williams, who is the adopted son of decedent and his first wife, appears by separate counsel.

When O. B. Williams died in 1924, he left a nonintervention will, providing in a general way for the disposal of a substantial fortune, and suggesting a sale of his mill business to his employees. With reference to this nonintervention will there has been much litigation, various aspects of which have been passed upon by this court and are reported as follows: In re Estate of O. B. Williams, 145 Wash. 19, 258 P. 851; In re Estate of O. B. Williams, 147 Wash. 381, 266 P. 137; In re Estate of O. B. Williams, 150 Wash. 695, 271 P. 1006; Horton v. McCord, 158 Wash. 563, 291 P. 717; Woodcock v. McCord, 160 Wash. 607, 295 P. 734.

The final decree and judgment was signed September 2, 1931, as a final decree and judgment in the consolidated causes of In re Estate of O. B. Williams, and Woodcock v. McCord et al. From that final decree and judgment there are four distinct appeals.

One of the three groups of claimants appealing consists of the brothers and sisters of decedent, who were bequeathed $5,000 each, and five brothers and sisters (together with the assignee of one of the brothers) of the testator's first wife, who were bequeathed $4,000 each. These appellants will be hereafter referred to as the Winifred I. Williams group.

The decree of distribution and judgment sets forth the names of twenty-three employees who are thereby entitled to form and take stock in the corporation to be organized for the purpose of purchasing the mill business under the provisions of the will. As Before stated, one of the consolidated causes being considered in this appeal is the case of William W. Woodcock et al. v. E. S. McCord et al., and is a suit brought by three employees on their own behalf and on behalf of all other similarly situated to compel the sale of the mill business to a corporation to be formed by decedent's employees. A number of the employees are now represented by Mr. Snyder in that suit, and these appellants will be referred to as the Woodcock group. Associated with this group in the appeal, and designated as part thereof, are two widows of deceased employees, who claim the right to stock in the corporation. They, like the employees of this group, have for their counsel Mr. Snyder.

Fourteen of the employees, preferring to have their interest represented by attorneys Bogle, Bogle & Gates, have appealed in these consolidated causes, and will hereafter be referred to as the Walsh group.

The Walsh and Woodcock groups maintain the trial court erred in not holding that they were entitled to purchase for $75,000, not only the business, the good will, the material, and approximately $16,000 cash in the operating fund of the O. B. Williams Company, but also the real estate on which the buildings stand, the buildings, and profits of approximately $150,000 from the business earned during the time it was conducted by the trustees.

Appellant Hannah E. Williams contends that the attempt to create a trust by subdivision (a) of the third paragraph of decedent's will is invalid, because it does not definitely provide a beneficiary capable of coming into court and claiming the benefit of the bequest. This question has not heretofore been disposed of by this court. The Walsh and Woodcock groups both claim that by virtue of that paragraph they are entitled to purchase, for the sum of $75,000, the mill, the mill business, the buildings, the real estate, the cash on hand and the profits earned by the executors since the decedent's death.

The pertinent parts of the paragraph in question are as follows:

'I give, devise and bequeath unto E. S. McCord and Howard Cosgrove, both of Seattle, Washington, all the rest, residue and remainder of my property, real, personal and mixed of whatsoever nature and wheresoever situate, for the following purposes and uses and upon the following trusts, to-wit:

'(a) I suggest that my said Trustees, as soon after my death as convenient, sell and dispose of my stock of merchandise, mill and mill plant, to a corporation to be organized by my employees and that such corporation pay for such business, including the good will, the sum of Seventy-five Thousand Dollars ($75,000) and that it be sold to such corporation on liberal terms as to time, but that at least Ten Thousand Dollars ($10,000) should be made payable within one year from the date of the sale, and at least Seventy-five Hundred Dollars ($7,500) be paid each year thereafter until the full amount of the purchase price shall have been paid. Deferred payments should bear interest at the rate of six per cent (6%) per annum, and no dividends to be declared by such corporation until the full sum of Seventy-five Thousand Dollars ($75,000) has been paid. Insurance in the sum of at least Twenty-Thousand Dollars ($20,000) should be carried on the mill and the stock. A rental of not less than Four Hundred Dollars ($400) per month, together with all taxes and assessments on the property at No. 1943 First Avenue South should be paid by the corporation, and a rental of One Hundred and Twenty-five Dollars ($125) per month, together with all taxes and assessments upon the mill site at Sixth Avenue South and Henrietta Street, Seattle, Washington; and I suggest that all employees who have been in my employment for five years and longer should hold stock in such corporation, should they so desire, and that heads of departments should have larger holdings of stock in such corporation, the amounts of stock to be held by the various stockholders to be determined by my Trustees . And such corporation should not be permitted to go into debt for any sum larger than the indebtedness of the O. B. Williams Company at the time of my death. All the provisions of this sub-division of my will in regard to the formation of such corporation and the purchase of said business, merchandise and other property, and in fact, all of the provisions of this sub-division, are not mandatory upon my Trustees, but are merely a suggestion as a basis for working out a plan by which said business can be handled advantageously.

'(b) To hold, manage, control, sell and convey any or all of my property, for such prices, upon such terms and to such person or persons as to my said Trustees may seem expedient, the purchaser or purchasers not to be required to see to the application of the purchase money.'

In the early decision Morice v. Bishop of Durham, 9 Ves. Jr. 399, 32 Eng. Reprint, 656, 10 Ves. Jr. 522, 32 Eng. Reprint, 947, 5 Eng. Rul. Cases, 548, the court construed a will by which a large estate was bequeathed to the Bishop of Durham in trust to dispose of the same to such objects of benevolence and liberality as he should most approve of. In its opinion (9 Ves. Jr. 399) the court said:

'There can be no trust, over the exercise of which this Court will not assume control; for an uncontrollable power of disposition would be ownership, and not trust. If there be a clear trust, but for uncertain objects, the property, that is the subject of the trust, is undisposed of, and the benefit of such trust must result to those, to whom the law gives the ownership in default of disposition by the former owner. But this doctrine does not hold good with regard to trusts for charity. Every other trust must have a definite object. There must be somebody, in whose favour the Court can decree performance. * * *

'But here there is no specific purpose pointed out, to which the residue is to be applied; the words 'charity' and 'charitable' do not occur; the words used are not synonymous; the trust may be completely executed without bestowing any part of this residue upon purposes strictly charitable. The residue therefore cannot be said to be given to charitable purposes; and, as the trust is too indefinite to be disposed of to any other purposes, it follows, that the residue remains undisposed of, and must be distributed among the next of kin of the testatrix.'

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