Patton's Estate, In re

• Decision Date: 28 February 1972
• Docket Number: No. 991--I,991--I
• Citation: 494 P.2d 238,6 Wn.App. 464
• Parties: In the Matter of the ESTATE of John George PATTON, Deceased. Ronald G. PATTON and Eileen Patton Clark, Appellants, v. Mildred PATTON, Respondent.
• Court: Washington Court of Appeals

Page 464

6 Wn.App. 464

494 P.2d 238

In the Matter of the ESTATE of John George PATTON, Deceased.

Ronald G. PATTON and Eileen Patton Clark, Appellants, v. Mildred PATTON, Respondent.

No. 991--I.

Court of Appeals of Washington, Division 1,

Panel Two.

Feb. 28, 1972.

Review Denied June 7, 1972.

Perkins, Coie, Stone, Olsen & Williams, Theodore J. Collins, Seattle, for appellants.

Edwards E. Merges, Robert H. Larson, Seattle, for respondent.

SWANSON, Judge.

Does Washington community property law prohibit a husband from devising the whole interest in any specific item of community property, notwithstanding that by the terms of his will his surviving spouse receives one-half or more of the community estate when it is considered in the aggregate? That is the primary question persented in this appeal. We answer it in the affirmative.

The respondent Mildred Patton and John George Patton were married January 6, 1937, in Vancouver, B.C., and remained husband and wife until the death of John George Patton on February 26, 1969. No children were born to this marriage. Appellants Ronald G. Patton and Eileen Patton Clark, children of the decedent by a previous marriage, appeal from the trial court's decision construing a disputed provision in their father's will and determining the validity of a gift of certain stock certificates adversely to them and in favor of respondent Mildred Patton. ¹ This appeal followed.

The dispute over the proper construction to be given the decedent's will centers upon the meaning of clauses 3 and 4 which provide as follows:

(3)

I give, devise and bequeath all items of property which bear both my name and my wife's name, MILDRED M. PATTON, such as stock certificates, Government bonds, bank accounts, savings certificates, insurance policies, retirement fund proceeds, real estate contracts, interest in the family home, to my wife, MILDRED M. PATTON, provided that she survives me by a period of four months. In the event that my wife predeceases me, or dies in the same accident or other calamity that shall cause my death, or fails to survive me by a period of four months. I then give, devise and bequeath my entire estate, without exception to my children, RONALD G. PATTON and EILEEN PATTON CLARK, share and share alike.

(4)

I give, devise and bequeath All other property to my children, RONALD G. PATTON and EILEEN PATTON CLARK, per stripes (sic) and not per capita, share and share alike.

(Italics ours.) The essential point of contention is the meaning to be assigned to the phrase 'all other property' in clause 4. The trial court carefully analyzed this language in connection with the presumption that any testator intends to limit his disposition to his own property, and held that this phrase was intended to include only the deceased husband's one-half community property share of 'all other property' and that, accordingly, Mildred Patton is entitled to her one-half community property share in 'all other property' In addition to the property she is entitled to received pursuant to clause 3. Appellants Ronald Patton and Eileen Patton Clark contend that the presumption relied upon by the trial court is rebutted, and argue that the intent expressed in the will is to dispose of all community property assets and that the phrase 'all other property' refers to the Whole interest in all community property assets not disposed of in clause 3. ²

In the construction of a will the fundamental rule is that the intent of the testator is paramount and is to be determined from the four corners of the will when read as a whole. In re Estate of Hamilton, 73 Wash.2d 865, 441 P.2d 768 (1968); In re Estate of Douglas, 65 Wash.2d 495, 398 P.2d 7 (1965); In re Estate of Seaton, 4 Wash.App. 380, 481 P.2d 567 (1971). See RCW 11.12.230. The intention of the testator is to be determined, if possible, from the terms of the will itself, although in determining the meaning of language employed by the testator in his will to accomplish that intent, the court may consider extrinsic evidence of the facts and circumstances surrounding the writing of the will. In re Estate of Price,75 Wash.2d 884, 454 P.2d 411 (1969); In re Estate of Lidston, 32 Wash.2d 408, 202 P.2d 259 (1949); Old Nat'l Bank v. Damon, 3 Wash.App. 721, 477 P.2d 29 (1970). This latter proposition was well stated by the court in In re Estate of Lidston, Supra at 418, 202 P.2d at 265:

In determining the meaning to be given to the language used in a will, extrinsic evidence of the surrounding facts and circumstances may be considered by the court, not for the purpose of proving intention as an independent fact, or of importing into the will an intention not expressed therein, but rather as an aid to a right understanding of the language used and for the purpose of enabling the court to discern what the testator meant by such language. (Citations omitted.)

Words used in a will are to be understood in their ordinary sense if there is nothing to indicate a contrary intent. In re Estate of Price, Supra; In re Estate of Levas, 33 Wash.2d 530, 206 P.2d 482 (1949). Nevertheless, if there is an ambiguity in the language of a will, the court is justified in applying reasonable rules of construction, including ejusdem generis, to determine the testator's intent with respect to the ambiguous provision. In re Estate of Weissenborn, 1 Wash.App. 844, 466 P.2d 536 (1970). The testator's intention is to be determined as of the date of execution of the will. In re Estate of Hamilton, 73 Wash.2d 865, 441 P.2d 768 (1968).

In order for this court to determine the intent of John George Patton as testator in the instant case, it is necessary to consider the provisions of his will previously set forth herein in the light of the foregoing principles. When clause 3 is considered, it is striking that the testator thereby purported to devise 'all Items of property which bear both my name and my wife's name' (Italics ours) to his wife, the respondent Mildred Patton. The testator then listed certain specific items of property, I.e., 'stock certificates, Government bonds, bank accounts,' etc. Considering only the provisions of the will itself and giving the words used therein their ordinary meaning, it is apparent that the testator purported to devise to his wife the Whole interest in the specified items, namely, those items in his and his wife's names jointly. In this regard, it is significant that he did not provide in his will that he was devising His property which happened to also be held in his wife's name; rather, he referred to 'property' in the general sense, meaning that he purported to devise the whole interest therein to his wife, notwithstanding any interest which his wife already might have had in such property.

In clause 4, having previously devised specific items of property to his wife in clause 3, the testator purports to devise 'all other property' to his children, the appellants Ronald G. Patton and Eileen Patton Clark. That there is an ambiguity in the phrase 'all other property' when considered in the context of the entire will appears undeniable, and it is notable that it was interpreted differently by two judges prior to this appeal, and it constitutes the core of the present controversy. Consequently, the will may properly be termed 'ambiguous,' which simply means that it is capable of being understood in more than one sense, and under such circumstances we are justified in employing reasonable rules of construction to determine the testator's intent. In re Estate of Torando, 38 Wash.2d 642, 228 P.2d 142 (1951); In re Estate of Weissenborn, Supra.

Under the rule of construction provided by the maxim of ejusdem generis, namely, that a general description of things which is in the same context as a specific enumeration of certain items will be limited to refer only to things of the same kind enumerated, it is apparent that the general reference to 'all other property' in clause 4 should be considered to refer to the same kind of property enumerated in clause 3. In other words, 'all other property' is to be construed to refer to the Whole interest in specific items of property because that was the Kind of 'property' referred to in clause 3. The only distinguishing feature of the property devised in clause 3 from that devised in clause 4 is the fact that it was held jointly in the names of the testator and his wife. It therefore appears that the testator had in mind an estate plan which called for the devise to his wife of the whole interest in community property held in both his and her names, and the devise to his children of the whole interest in 'all other property' held in his name alone or otherwise held without the joinder of his wife's name.

Our understanding that such was the nature of the testator's intent is aided further by a consideration of the facts and circumstances surrounding the writing of the will. In re Estate of Lidston, Supra. Every item of property held in the names of the testator and his wife jointly was mentioned by the testator in clause 3, and all such items, with the sole exception of 'insurance policies' were found in the inventory of his estate. In addition, prior to writing his will, the testator put certain certificates for shares of stock in Safeway Stores, Inc., jointly in his name and the names of each of his children, respectively. ³ Certain additional stock certificates remained either in his name alone or were held jointly by him with his wife. He wrote a letter of intent dated June 13, 1967, purporting to satisfy a mortgage loan in the amount of $21,000 to Ronald Patton, with the proviso that the loan be repaid by Ronald until the testator's death, after which the unpaid balance was to be shared equally between Ronald and Eileen, with Ronald to make payments to his sister until her half was paid in full. ⁴ Significantly, in April of 1969, the testator placed a major asset, a lessor's interest in a fire engine contract...