Old Nat. Bank & Trust Co. of Spokane v. Hughes

• Decision Date: 16 February 1943
• Docket Number: 28856.
• Citation: 134 P.2d 63,16 Wn.2d 584
• Court: Washington Supreme Court
• Parties: OLD NAT. BANK & TRUST CO. OF SPOKANE v. HUGHES et al.

134 P.2d 63

16 Wn.2d 584

OLD NAT. BANK & TRUST CO. OF SPOKANE v. HUGHES et al.

No. 28856.

Supreme Court of Washington

February 16, 1943

Department 2.

Action by The Old National Bank and Trust Company of Spokane trustee, against Raymond J. Hughes and others, settlor's nephews and nieces, and Dorothy M. Hughes and others settlor's grandnieces, for the construction of a trust agreement as to the manner and to whom the trust corpus should be distributed. From a decree directing that the trust estate be distributed to the nieces and nephews to the exclusion of the grandnieces, the grandnieces appeal.

Affirmed.

Appeal from Superior Court, Spokane County; R. M Webster, judge.

Weaver & Weaver, of Spokane, for appellants.

Graves, Kizer & Graves, of Spokane, for defendants-respondents.

Witherspoon, Witherspoon & Kelley, of Spokane, for plaintiff and respondent.

BLAKE Justice.

Plaintiff, as trustee under a declaration of trust executed by George W. Hughes on September 25, 1908, brought this action, praying that the court construe the trust agreement and 'instruct * * * as to the manner and to whom [the] trust corpus should be distributed.' Plaintiff is successor to W. J. C. Wakefield, who was designated trustee in the declaration of trust and acted as such until his death in 1931. The defendants in the case are nephews, nieces, and grandnieces of the settlor of the trust. The question for determination on this appeal is what, if any, rights the grandnieces have under the trust agreement. Except for a negligible interest in income, the trial court held they had none. From a decree directing that the trust estate be distributed to the nieces and nephews to the exclusion of the grandnieces, the latter appeal.

The declaration of trust recites that, on September 11, 1908, the settlor had conveyed his property to W. J. C. Wakefield 'in trust for the purpose of more conveniently carrying out my wishes with reference to the handling and disposition of said property during my lifetime, as well as after my death.' It is further recited that, while he had neither seen nor known much 'of my five brothers and their families * * * nor of my mother,' he still had 'for them the most sincere brotherly and filial affection and feelings, and am endeavoring to provide for them liberally and impartially from my estate.' (Italics ours.)

It was provided that the income from the trust estate be paid to the settlor during his lifetime. Upon his death, the income was to go one-sixth to his mother and one-sixth to each of his five brothers. Upon the death of his mother, her share was 'to be paid over to my said brothers surviving, share and share alike'; and,

'Upon the death of any brother leaving issue of his body surviving, the share of said net income so paid to him shall be paid to his children. Upon the death of any brother leaving no issue surviving him, the shares or portion of said net income theretofore paid to him shall be paid to his surviving brothers, or the living issue of any deceased brother.'

Then follows this provision: 'Upon the death of my mother and all of my said brothers said Trustee, his successor or successors, shall pay over, or cause to be paid over to the surviving children of my said brothers, per stirpes and not per capita, all of such trust property remaining at such time. It being my intention by this trust to leave, after the payment of my debts, expenses of administration and the payment of said two bequests of gifts hereinBefore mentioned, a life estate in all the remainder and residue of my estate, in trust, however, for my mother and five brothers and with the net income payable as hereinBefore provided, and upon the death of my said mother and all of my said brothers, to leave said estate in fee to their respective surviving children, per stirpes and not per capita.' (Italics ours.)

The mother died in 1914; the last of the five brothers in 1940.

In construing instruments creating trusts, the sole object of the courts is to ascertain the intent and purpose of the settlor, and to effectuate that purpose in so far as 'it be consistent with rules of law,' 26 R.C.L. 1252, §§ 99, 100. As pointed out in Shufeldt v. Shufeldt, 130 Wash. 253, 227 P. 6, many rules have been devised to aid in ascertaining the intent and purpose of the settlor. Primarily, such intent and purpose must be derived from the terms of the instrument--construing all the provisions together. In re Peters' Estate, 101 Wash. 572, 172 P. 870.

Taking the instrument by its four corners, the appellants argue that the use of the term 'brothers and their families' in the recitals of the instrument and the use of the word 'issue' in the clause relating to the distribution of a deceased brother's share of income, manifest a purpose by the settlor to include grandchildren as well as children of his brothers as objects of his bounty.

We think it unnecessary to discuss the position taken by appellants with respect to the term 'brothers and their families.' For, under the facts presented in this case, the word 'families' could be accorded no greater import than the word 'issue.' It is, of course, conceded that the word 'issue' standing alone would include descendents of the brothers to the remotest degree. Construing the instrument altogether, however, we do not think the word can be said to stand alone. 'Issue' appears only in the income clause. In the first sentence of that clause it is followed immediately by the word 'children.' True, the word 'issue' is not qualified by the word 'children' in the second sentence of the income clause. But it is very clearly qualified by the use of the word 'children' in the next clause relating to the distribution of the corpus of the trust estate. The word 'issue' does not appear in that clause at all.

While a somewhat plausible argument may be made that grandchildren of the deceased brothers should share in the income, it is clear they have no right to participate in the distribution of the corpus of the trust estate. For the general rule to which this court is committed ( In re Hutton's Estate, 106 Wash. 578, 180 P. 882, 3 A.L.R. 1673) is that the word 'child' or 'children' used in a trust instrument will not be construed to include 'grandchildren' unless such construction is impelled by other language in the instrument Billingsley v. Bradley, 166 Md. 412, 171 A. 351, 104 A.L.R. 274, annotation II, p. 283.

It is, of course, the position of appellants that the use of the word 'issue' in the income clause does impel that construction; in other words, that the word 'issue' as used in the income clause expands the effect of the word 'children' as used in the clause relating to the disposition of the corpus of the estate. We do not think the position tenable. On the contrary, we have most respectable authority for holding that the use of the word 'children' in a trust instrument circumscribes the effect of the word 'issue' appearing in another part of the instrument. Adams v. Law, 17 How. 417, 58 U.S. 417, 15 L.Ed. 149; Palmer v. Horn, 20 Hun, N.Y., 70, affirmed 84 N.Y. 516; In re Potter's Estate, 173 Misc. 191, 17 N.Y.S.2d 489; King v. Savage, 121 Mass. 303; Taylor v. Taylor, 63 Pa. 481, 3 Am.Rep. 565; In re Hopkins' Trusts, L.R., 9 Ch.Div. 131. In Adams v. Law, supra, the court said 17 How. at page 422, 15 L.Ed. 149:

'Hence in the construction both of wills and deeds, where the instrument has not, so carefully as in the present case, limited the word 'issue' to children living &c., but where the term is used without qualification, and is in another part of the same instrument...