Johnson v. McClure

• Citation: 5 Wn.2d 123,104 P.2d 962
• Decision Date: 09 August 1940
• Docket Number: 27926.
• Parties: JOHNSON v. McCLURE et al. McCLURE et al. v. McCRARY.
• Court: Washington Supreme Court

104 P.2d 962

5 Wn.2d 123

JOHNSON v. McCLURE et al.

McCLURE et al. v. McCRARY.

No. 27926.

Supreme Court of Washington

August 9, 1940

Department 1.

Action of interpleader by Julius C. Johnson against Martha E McClure, Ed W. Weeks, Herman E. Weeks, and others, and Jay G McCrary, as administrator of the estate of Jennie Weeks deceased, in which plaintiff paid into court proceeds of realty which he had held in trust under terms of a will made by Eli C. Weeks, deceased, wherein Martha E. McClure, Ed W Weeks, Herman E. Weeks, and others filed a cross-complaint against Jay G. McCrary, as administrator of the estate of Jennie Weeks, deceased. From a judgment awarding Jay G. McCrary, as administrator of the estate of Jennie Weeks, deceased, a portion of the sum paid into court, Martha E. McClure, Ed W. Weeks, Herman E. Weeks, and others appeal.

Affirmed.

Appeal from Superior Court, Lincoln County; M. E. Jesseph, judge.

Graves, Kizer & Graves, of Spokane, for appellants.

Floyd Underwood, of Davenport, and R. E. Lowe, of Spokane, for respondent.

SIMPSON Justice.

Plaintiff instituted an action of interpleader, and paid into court the proceeds of the real estate which he had held in trust under the terms of a will made by Eli C. Weeks. The complaint named the heirs of the testator, along with the administrator of the testator's wife's estate, as defendants. A trial to the court resulted in the entry of a decree awarding to Jay G. McCrary, as administrator of the estate of the testator's wife, Jennie Weeks, a portion of the sum paid into court. The heirs of the testator, who were cross-complainants in the trial below, have appealed from that decree.

The facts are these: May 23, 1925, Eli C. Weeks executed a will, which, omitting certain formal portions, reads as follows:

'First, I direct that my body be decently buried with proper regard to my station and condition in life and the circumstances of my estate.

'Second, I direct that my executor hereinafter named, as soon as he has sufficient funds in his hands, pay my funeral expenses and all my just debts.

'Third, I give, devise and bequeath all my personal property of every kind and nature and all my real estate situated in the Town of Almira, Lincoln County, Washington, unto my wife Jennie Weeks.

'Fourth, I give, devise and bequeath to the executor of this, my last Will and Testament, hereinafter nominated and appointed in Trust, to be held and possessed by him, for and during the natural life of my beloved wife Jennie Weeks, all my separate real estate situated in Sections, Twenty-nine (29) and Thirty-two (32), Township Twenty-eight (28), North of Range Thirty-one (31) E. W. M., Lincoln County, Washington.

'And I do hereby order and direct that during the continuance of the said Trust Estate, as aforesaid, Five Hundred Dollars ($500.00) of the net income from said real estate shall be paid annually to my wife Jennie Weeks. The remainder if any, of said net income is to be used in liquidating the indebtedness against said real estate until that is fully paid and after that the whole income is to be annually paid to my wife Jennie Weeks.

'In the event that the income from said real estate is insufficient to make the annual payment of Five Hundred Dollars ($500.00) to my wife then it is my wish and desire and I hereby authorize my executor hereinafter named to hypothecate the said real estate and raise sufficient funds to make such annual payments.

'I further direct that after the decease of my wife, Jennie Weeks, my executor hereinafter named shall as soon as practical sell said real estate and divide the proceeds in equal parts among my brother John T. Weeks or his heirs, and my sisters, Louisa J. Crabb and Martha E. McClure of Larmar, Mo. or their theirs.

'Fifth, Should I survive my wife Jennie Weeks, I will and direct that all my property both personal and real of whatsoever nature and wheresoever situated, after my decease be sold by my executor hereinafter named and the net proceeds thereof be equally divided among my brother John T. Weeks, or his heirs, and my two sisters, Louisa J. Crabb and Martha E. McClure of Larmar, Mo. or their heirs.

'Sixth, I hereby constitute, nominate and appoint Julius C. Johnson and in the event of his decease the then acting Cashier of the Almira State Bank, Almira, Wash., the executor of this my Last Will and Testament, to act without bonds, hereby revoking all former wills made by me and ratifying and confirming this, and no other, to be my Last Will and Testament.'

Mr. Weeks died September 26, 1925, and his will was admitted to probate October 14, 1925. Julius C. Johnson was appointed trustee in the will and qualified as such.

Jennie Weeks died September 29, 1936, and Jay G. McCrary was appointed administrator of her estate.

Subsequent to her death, the trustee of the Eli C. Weeks estate sold the real property mentioned in the will for the sum of $6,239.63, and paid it into court subject to the claims of the heirs of Mr. and Mrs. Weeks.

During the time trustee Johnson had charge of the property left by Eli C. Weeks, he was unable to pay the annuity to Mrs. Weeks, and deficiencies accumulated until at the time of her death the payments were in arrears in the sum of $3,725. Judgment for that amount was entered against the fund paid into court.

The first question presented is whether, upon failure of income to pay the annuity, the deficit may be supplied from the corpus of the estate.

Appellants maintain that a proper construction of the will indicates an intention on the part of the testator to limit the source of the annuity payments to the net income of the estate and the amount possible to borrow thereon, and that the corpus of the estate was not to have been depleted in order to pay the amounts to his surviving widow.

Respondent contends that the provisions of the will manifest an intention on the part of the testator to provide an annuity of five hundred dollars to his widow which must be paid, first, from the net income of the estate or, second, from the corpus of the estate, should the income fail. Respondent maintains that the will creates a demonstrative legacy to which specific and general legacies must give way.

'A 'specific legacy' is a bequest of a particular thing, or specified part, of the testator's estate, which is so described as to be capable of identification from all others of the same kind. The testator must intend that the legatee have the very thing bequeathed, not merely a corresponding amount in value or like property.' 69 C.J. 919.

'A 'general legacy' is one which does not direct the delivery of a particular thing or part of the estate, as distinguished from all others of the same kind and capable of precise identification, or the payment of money out of a particular portion of the estate; the legacy may be satisfied out of the general assets of the testator's estate without regard to any particular fund, thing, or things.' 69 C.J. 921.

'A 'demonstrative legacy' is one payable out of a particular fund primarily, but, if the fund designated fails, out of the general assets. The legacy is one of quantity; two elements are necessary: (1) It must be an unconditional gift in the nature of a general legacy, and (2) the legacy must indicate the fund out of which it is payable. For a legacy to be treated as demonstrative, the fund must be in existence at the time of the testator's death.' 69 C.J. 922.

In order to solve the questions presented by appellants and respondent, it is necessary to examine the will in its entirety as well as the facts and circumstances surrounding the testator at the time the will was executed.

The direction of our inquiry is indicated by Rem.Rev.Stat. § 1415, which reads: 'All courts and others concerned in the execution of last wills shall have due regard to the direction of the will, and the true intent and meaning of the testator, in all matters brought Before them.'

The intention of the testator is a predominant factor to be determined. In other words, we must ascertain the objects sought to be accomplished by the maker of the will. In so doing, we must gather the meaning from an examination of the writing as a whole viewed in the light of the surrounding circumstances concerning the testator, the state of his property, the condition of his family, and the persons named as devisees. In re Lotzgesell's Estate, 62 Wash. 352, 113 P. 1105; Shufeldt v. Shufeldt, 130 Wash. 253, 227 P. 6; In re Hochbrunn's Estate, 138 Wash. 415, 244 P. 698, 49 A.L.R. 7; Cotton v. Bank of California, 145 Wash. 503, 261 P. 104; In re Doepkes' Estate, 182 Wash. 556, 47 P.2d 1009; Bank of California v. Turner, 193 Wash. 270, 74 P.2d 987; 69 C.J. 59, 63, §§ 1119 and 1120.

Did the testator intend, in making provisions for the support of his wife, to provide the definite sum of five hundred dollars per year, to the exclusion of others named in the will, and was it his desire that the corpus of the estate should be invaded in order to provide the support provided for her?

One of the first cases touching upon this question is Pierrepont, Exec., v. Edwards, 1862, 25 N.Y. 128. In that case it appears that the testator left in trust an estate consisting of personal and real property of considerable value. The direction of the trust provided as follows: (a) to pay to the widow $8,000 per annum; (b) if there were no child or children, to pay to the widow $7,000 (c) the residue of the income to be paid to a brother and two sisters; and (d) after the death or remarriage of the widow, the trustees were to pay the income to any surviving children, or if none, to the brothers and sisters, and upon the death of the brothers and sisters then to go to their...