Peiffer v. Old Nat. Bank & Union Trust Co., 23286.

• Citation: 6 P.2d 386,166 Wash. 1
• Decision Date: 21 December 1931
• Docket Number: 23286.
• Court: Washington Supreme Court
• Parties: PEIFFER v. OLD NAT. BANK & UNION TRUST CO. et al.

6 P.2d 386

166 Wash. 1

PEIFFER v. OLD NAT. BANK & UNION TRUST CO. et al.

No. 23286.

Supreme Court of Washington

December 21, 1931

Department 2.

Appeal from Superior Court, Spokane County; Charles H. Lary, Judge.

Will contest by Katherine Sayre Peiffer against the Old National Bank & Union Trust Company, administrator with the will annexed of the estate of Albert J. Peiffer, deceased, and others. From an adverse judgment, plaintiff appeals.

Affirmed.

Lund &amp Dodds, of Spokane, for appellant.

Kimball & Blake, of Spokane, for respondents.

HOLCOMB, J.

This proceeding was instituted in the court below to contest the last will of Albert J. Peiffer, who died June 30, 1930. The will was executed June 19, 1920. The contestant is a daughter of the decedent by his first wife. Respondent Mabel Mildred Peiffer was divorced from decedent January 19, 1929, and has remarried to one Harding. Respondent Albert John Peiffer Jr., is the minor son of decedent and his divorced wife. Mabel Mildred Peiffer Harding is the guardian of respondent Albert John Peiffer.

The necessary parts of the will, in so far as it affects this appeal, are:

'II

'I hereby expressly mention my daughter, Katherine Sayre Peiffer, and expressly make no devise or bequest to her by this will.

'III

'In the event that my beloved wife, Mabel Mildred Peiffer, shall survive me for a period of three months I hereby give, devise and bequeath to her all of my property of every kind and character and wheresoever situated.

'IV

'In the event that my beloved wife, Mabel Mildred Peiffer, shall survive me for a period of three months, I hereby expressly make no devise or bequest to my son, Alfred John Peiffer, Jr., for the reason that his interest will be fully cared for by my beloved wife above mentioned.

'V

'In the event that my beloved wife, Mabel Mildred Peiffer, shall not survive me for a greater period than three months, I hereby give, devise and bequeath to my son, Albert John Peiffer, Jr. all of my property of every kind and character and wheresoever situated.

'VI

'In the event that my beloved wife, Mabel Mildred Peiffer, shall not survive me for a longer period than three months, I hereby nominate and appoint my dear friend, Mary I. Williams, of Spokane, Washington, to be the guardian of both the person and estate of my son, Albert John Peiffer, Jr., and hereby expressly consent to the adoption by her of my said son, provided only that his name shall not be changed.

'VII

'I hereby nominate and appoint my beloved wife, Mabel Mildred Peiffer, executrix of this my will, provided she shall survive me for a period of three months and direct that she shall serve without the giving of any bond and shall handle and close my estate without the intervention of any court, except in so far as is required by the non-intervention laws of the State of Washington, and I hereby expressly vest in her power to sell any property of any kind or character belonging to my estate, wheresoever situate, without being required to obtain any order of court for such sale or to report her proceedings concerning such sale to any court.

'VIII

'In the event that my beloved wife, Mabel Mildred Peiffer, shall not survive me for a longer period than three months, I hereby nominate and appoint my dear friend, Mary I. Williams, executrix of this my will and direct that she shall serve as such executrix without the giving of any bond and that she shall probate my estate and close the same without the intervention of any court, except in so far as may be required by the non-intervention will laws of the State of Washington, and I further direct that she shall act as guardian and trustee for my said beloved son, Albert John Peiffer, Jr. and shall have the sole custody and care and control of my said son, and shall handle his property as she shall see fit, without giving bond or being required to account to any court or courts for her doings in relation thereto, it being my intention in the event that my beloved wife, Mabel Mildred Peiffer, shall not survive me for a longer period than three months, that all of my property of every kind and character and wheresoever situated shall pass to the said Mary I. Williams to be used by her as she shall see fit for the benefit of my said son, Albert John Peiffer, Jr.'

Respondents demurred to the petition of appellant, the trial court sustained the demurrer, contestant refused to plead further, and her petition was dismissed. This appeal results.

No party contends that the will is not revoked as to Mrs. Harding, because of the provision of Rem. Comp. Stat. § 1399, the material part of which reads: '* * * A divorce, subsequent to the making of a will, shall revoke the will as to the divorced spouse.'

In Re Ziegner's Estate, 146 Wash. 537, 264 P. 12, we held that the above portion of the statute is retroactive, operating to revoke a will executed Before the act went into effect, and that there is no vested interest in a will so long as the maker is alive.

Based upon the premise that since the divorce revoked the will in favor of Mrs. Harding, and because Mrs. Harding still lives, the son Albert takes nothing under the will, his inheritance under the will being contingent upon a condition precedent, namely, the death of Mrs. Harding within three months after that of the testator. Appellant asserts that she and Albert share equally in the estate by the law of descent, Rem. Comp. Stat. § 1341 et seq. It is argued in this connection that, were it not for section 1399, supra, the estate would now be vested in Mrs. Harding as of the date of the testator's death; and that by the terms of paragraph 4 of the will Albert takes nothing if Mrs. Harding survived the three-month period; that Albert takes the estate bequeathed and devised to him only upon the happening of the uncertain event of the death of Mrs. Harding within the three-month period.

It is correct that the intention of the...