Patterson v. Bixby

• Decision Date: 03 August 1961
• Docket Number: No. 35801,35801
• Citation: 364 P.2d 10,58 Wn.2d 454
• Court: Washington Supreme Court
• Parties: Melba PATTERSON, Executrix of the Estate of Priscilla Bixby, Deceased, Appellant, v. Earl J. BIXBY and Florence Nelson, CoExecutor and Executrix of the Estate of Frank W. Bixby, Deceased, Respondents.

Page 454

58 Wn.2d 454

364 P.2d 10

Melba PATTERSON, Executrix of the Estate of Priscilla Bixby, Deceased, Appellant, v. Earl J. BIXBY and Florence Nelson, CoExecutor and Executrix

of the Estate of Frank W. Bixby, Deceased, Respondents.

No. 35801.

Supreme Court of Washington, Department 2.

Aug. 3, 1961.

Rehearing Denied Sept. 21, 1961.

Kumm, Maxwell, Petersen & Lee, Seattle, for appellant.

Joseph T. Pemberton, Bellingham, for respondents.

HUNTER, Judge.

This action was brought for the specific enforcement of a contract to bequeath a sum of money.

Priscilla and Frank Bixby were married in 1940. Both had been married previously, by which prior marriages each had children. In 1946, a question arose concerning the validity of Mrs. Bixby's divorce from her prior husband; thereupon, they obtained an annulment of their marriage and separated. On February 28, 1948, Mrs. Bixby obtained a divorce from her former husband, and, thereafter and on the same day, Priscilla and Frank Bixby remarried and remained husband and wife until her death.

On February 9, 1954, Frank Bixby executed a codicil providing that,

'To my wife, Priscilla Bixby, I give, devise and bequeath, the right to live in my property at 1108 Garden Street, Bellingham, Washington, for a period of one (1) year, from the date of my death, and I further bequeath to my wife, Priscilla Bixby, and hereby authorize my executor and executrix hereinafter named in my said Will, to pay to my said wife, the sum of Twenty Thousand Dollars ($20,000.00), in cash, Provided, that my said wife make no contest of my Will and of this Codicil thereto, or any claim for any alleged community interest in my property, and in the event she should contest or refuse to sign a waiver to any alleged interest she has in my property, whether separate or alleged community interest, then this bequest shall be declared null and void and my said wife shall have and take no part of my separate property, it being the intention of myself, that the said $20,000.00, if accepted, shall be in lieu of any and all monies ordered paid by the Court, for the support of my said wife during the time my said estate shall be in the course of probation.

'I make this condition for the reason that I know the property is all my separate property and any community earnings made since marriage to my said wife, have been more than consumed in expense, since marriage.'

Also on February 9, 1954, Mr. and Mrs. Bixby entered into an agreement which provided as follows:

'Frank W. Bixby, has on this date, executed a Codicil to his Last Will and Testament, which codicil provides for a bequest to Priscilla Bixby, the sum of Twenty Thousand Dollars ($20,000.00), in cash, the family automobile, and the household goods and furnishings, and for and in consideration of the execution of said condicil, the said Frank W. Bixby, agrees not to change the provisions of said codicil, making such provisions for the said Priscilla Bixby, by any future will or codicil.

'For and in consideration of said agreement, not to alter such provisions, the said Priscilla Bixby hereby agrees to waive any other claims by way of family allowance homestead allowance, or other claims as creditor or otherwise, against the estate of the said Frank W. Bixby, and it is mutually agreed that this agreement cannot be abrogated, altered or revoked, without the execution of a new agreement signed by both of the parties hereto.'

At this time, Frank Bixby was eighty years old and was not in good health. Priscilla Bixby was fifty years old and was in apparently good health. In 1956, a guardian of the person and estate of Frank Bixby was appointed and all of his property became assets of the guardianship estate.

On September 24, 1956, Priscilla Bixby died testate. Her will was admitted to probate and the plaintiff, Melba Patterson, was duly appointed and qualified as executrix of the state. One of the assets listed in Priscilla Bixby's estate was the claim upon which this action is based.

Frank Bixby died testate on or about January 22, 1959. His will was admitted to probate and the defendants, Earl J. Bixby and Florence Bixby Nelson, were appointed and qualified as co-executor and executrix of the estate. The codicil was never presented or admitted to probate. The assets of the estate of Frank W. Bixby, valued at approximately $90,000, consisted primarily of the remaining assets of the guardianship estate.

The plaintiff, as executrix of the estate of Priscilla Bixby, served and filed a creditor's claim upon the estate of Frank W. Bixby. This claim was served and filed only to enforce the agreement relating to the codicil; it was rejected by the defendants and this action was instituted. Neither Priscilla Bixby nor her personal representative made any claim, except the one mentioned above, against the assets of the estate of Frank Bixby.

In the complaint, the plaintiff alleged, among other things, the execution of the codicil and the agreement, full performance of Priscilla Bixby's part of the agreement, the death of Frank Bixby, and the failure of the co-executor and executrix of his estate to present the codicil to probate. In their answer, as amended, the defendants alleged, as an affirmative defense, that, among other things, the provisions of the codicil had lapsed.

The plaintiff introduced the instruments set out above as well as testimony of several persons. The defendants rested their case without offering additional evidence. Thereupon, the trial court entered findings of fact, conclusions of law and judgment in favor of the defendants dismissing the plaintiff's action, from which the plaintiff appeals.

The plaintiff (appellant) contends principally that the trial court erred in interpreting the agreement to mean that Frank Bixby's promised performance was conditioned upon Priscilla Bixby surviving him as well as her not making any claims for family allowance, homestead, debts as a creditor, or other claims.

In determining what bargain was made between Frank and Priscilla Bixby, we are aided by certain established rules of interpretation. See generally, Shattuck, Contracts in Washington, 1937-1957; Part II, 34 Wash.L.Rev. 345 at 369-377 (1959). In making this determination, we must remember that 'courts do not have the power, under the guise of interpretation, to rewrite contracts which the parties have deliberately made for themselves.' Chaffee v. Chaffee, 1943, 19 Wash.2d 607, 145 P.2d 244, 252.

Language in a contract will be given its ordinary meaning unless a sufficient reason exists to apply another meaning. Rew v. Beneficial Standard Life Ins. Co., 1952, 41 Wash.2d 577, 250 P.2d 956, 35 A.L.R.2d 891; Jack v. Standard Marine Ins. Co., 1949, 33 Wash.2d 265, 205 P.2d 351, 8 A.L.R.2d 1426. Language will be given the meaning which best gives effect to the intention of the parties. Crofton v. Bargreen, 1958, 53 Wash.2d 243, 332...