Peck v. Peck

• Decision Date: 05 December 1913
• Parties: PECK v. PECK et al.
• Court: Washington Supreme Court

137 P. 137

76 Wash. 548

PECK v. PECK et al.

Supreme Court of Washington

December 5, 1913

Department 2. Appeal from Superior Court, Spokane County.

Action by Frances E. Peck against Heman Everett Peck and others and Isabella McLaren Howard and another. From a judgment for plaintiff, defendants appeal. Affirmed on the appeal of the first-named defendants; that of the last being dismissed.

Tolman & King, of Spokane, for appellants.

John M Gleeson, A. G. Gray, and A. E. Gallagher, all of Spokane, for respondent.

ELLIS J.

This action was brought by Frances E. Peck to remove a could from the title to a one-half interest in certain real estate in the city of Spokane which she claims under the will of her deceased husband and of which one-third, or one-sixth of the entire property, is claimed by the defendants Heman Everett Peck, Roy Peck, and Margaret Peck by virtue of the same will. The following facts are not in dispute: The plaintiff was the wife of one O. O. Peck at the time of his death and for many years prior thereto. She was his second wife. By his first wife, O. O. Peck had one son, the defendant Heman Everett Peck. This son had three sons, Frank Peck, Roy Peck, and Ora Peck. The property her in question was the separate property of O. O. Peck, acquired by him between the time of the death of his first wife and his marriage with the plaintiff. In 1902, O. O. Peck made a nonintervention will of which the following clauses are pertinent to the issues here involved:

'Second. I give, bequeath and devise to my wife, Frances E. Peck one undivided one-third (1/3) interest in and to all that certain piece or parcel of land situate on Howard street, in said city and county, and occupied by the building commonly known as 'Peck Building,' and more particularly described as follows, to wit: * * *' (No question being presented as to the particular description, we omit it.)

'Third. I give, devise and bequeath to my son, Heman Everett Peck, and to his sons, Frank Peck, Roy Peck and Ora Peck, the remaining undivided two-thirds (2/3) interest in and to the above-described real estate to be divided equally between them share and share alike; provided, however, this clause of my will shall not take effect and be operative until the expiration of five (5) years from the date of my death, and provided further, and I hereby direct, that my said wife, Frances E. Peck, shall take possession of the whole of said above-described real estate, and collect all the rents, issues and profits thereof until the end of said five (5) years, and out of the said rents, issues and profits, to pay all the taxes and other necessary expenses of preserving and protecting said property and after paying said taxes and expenses to pay my son, Heman E. Peck, the sum of twenty-five dollars ($25.00) per month during said period of five years, and the balance of said rents, issues and profits to herself as, and in lieu of any and all other compensation for managing said real estate and collecting the rents, issues and profits thereof and paying said taxes and expenses and commissions as executrix of this, my last will and testament. * * *

'Fifth. I give, bequeath and devise to my wife, Frances E. Peck, all the rest and residue of my estate, real, personal and mixed.

'Lastly. I do hereby nominate and appoint my wife, Frances E. Peck, executrix of this, my last will and testament, and I do hereby revoke all former wills made by me, and I hereby direct that my said executrix shall not be required to enter any bond, and that my estate shall be settled in the manner herein provided, by my executrix, and that letters testamentary or of administration shall not be required.'

After this will was made, and some time prior to the death of the testator, Ora Peck died, a minor, unmarried, intestate, and without issue. The testator died on June 28, 1906, and Frances E. Peck, the plaintiff, qualified as executrix, filed an inventory, caused an appraisement of the estate to be made, and procured an order of the superior court in probate, declaring the estate solvent, and authorizing her to administer and settle the estate in accordance with the terms of the will and without the intervention of the court. Some time after the death of the testator, Frank Peck died, leaving as his sole heir his widow, the defendant Margaret Peck. After the testator's death and prior to August, 1910, the defendants Peck had made mortgages upon their interest in the property in question, apparently without designating the extent of that interest, to the plaintiff and also to certain other persons. On August 19, 1910, a loan was made to the defendants Peck for the purpose of taking up these mortgages, by the defendants Howard, which loan was secured by a mortgage on the undivided two-thirds interest in the property now claimed by the defendants Peck. On February 17, 1911, the plaintiff and defendants Peck joined in a five-year lease of the entire premises in question to the Combination Club Café, which lease contained the following provision: 'One-third of each and every month's rent to be paid to Frances E. Peck; the remaining two-thirds of each and every month's rent to be paid to Everett H. Peck, the lessors.' Other facts upon which there was a conflict in the evidence will be noticed in the course of the discussion.

At the conclusion of the evidence, the court declined to make any findings of fact or conclusions of law, but entered a decree adjudging the plaintiff to be the owner in fee simple of an undivided one-half interest in the property, free from any interest or lien of any of the defendants, and quieting her title thereto and awarding her costs. The defendants appeal.

We find it unnecessary to set out or review the voluminous pleadings further than to say that they are sufficient to raise the following questions, the answers to which must be determinative of the case: (1) Was the devise of the two-thirds interest, to be divided equally, share and share alike, between Heman Everett Peck and his sons, Frank, Roy, and Ora, a gift to individuals as tenants in common, which lapsed as to the share of Ora upon his death before the testator's demise, or was it a gift to a class composed of the persons named which survived unimpaired to the others of that class on the death of Ora Peck prior to the death of the testator? (2) Was there such a distribution of the estate prior to the commencement of this suit in accordance with either of these views as to be binding upon the parties to this action? (3) Has the respondent estopped herself to assert any claim to more than the one-third of the real estate in question? (4) Has the respondent mistaken her remedy?

1. The appellants earnestly insist that the devise to the testator's son, Heman E. Peck, and to his sons, Frank Peck, Roy Peck, and Ora Peck, of the undivided two-thirds interest in the real estate in question, to be divided equally between them, share and share alike, was a gift to these persons collectively as a class, and that those of the class who survived the testator took the share which would have gone to the testator's grandson Ora, had he outlived the testator. The respondent is equally insistent that the devise was of a specific interest to each of the persons named, as an individual, and that, on the death of Ora Peck, the devise to him lapsed, and the interest intended for him fell into the residuum and passed to the respondent under the fifth clause of the will.

It is, of course, a rule to which there can be no dissent that, in construing a will, the dominant intention of the testator, as manifested in his will, must, if lawful, be given effect; but the intention which controls is that which is positive and direct, not that which is merely negative or inferential. Bill v. Payne, 62 Conn. 140, 25 A. 354.

It is only where the terms of the will are ambiguous, and the intention left in doubt, that a resort may be had to adventitious circumstances to determine that intention. Such circumstances can never be invoked to create an ambiguity not apparent in the will itself, nor necessarily arising when it is sought to apply the terms of the will to the subject-matter or to the beneficiaries. The duty of the court is ended when it has determined by the well-settled rules of interpretation what the testator actually intended by the language which he has used. If that intention is valid, it must be carried out. Herzog v. Title Guaranty & Trust Co., 177 N.Y. 86, 69 N.E. 283, 284, 67 L. R. A. 146.

Whether a devise is intended as a gift to a class collectively or to individuals distributively as tenants in common must, of course, primarily be determined by the language employed in the particular devise. If there is any doubt as to the intention there expressed, resort must be had to the other provisions of the will, and, if there is still a doubt, aid may sometimes be found in the situation and relation of the persons interested and in the circumstances of the estate. Owing to the almost infinite variety of language which may be used in wills, it is obviously impossible to lay down any invariable rule for determining the intention. Courts will not permit themselves to be enslaved by mere technical rules of construction, but there are certain broad canons of interpretation which have become so thoroughly established by judicial announcement that they may be said to have passed into the body of substantive, or at least definitive, law upon the subject, which the courts will not capriciously disregard.

As defining a gift to a class, no rule has been more frequently announced, nor more universally adhered to, than the following: 'In legal contemplation, a gift to a class is a gift of an aggregate sum to a body of persons...