Reagh v. Hamilton

• Decision Date: 20 April 1938
• Docket Number: 26973.
• Citation: Reagh v. Hamilton, 194 Wash. 449, 78 P.2d 555 (Wash. 1938)
• Parties: REAGH et al. v. HAMILTON, Atty. Gen. (MOLLER, Intervener.
• Court: Washington Supreme Court

78 P.2d 555

194 Wash. 449

REAGH et al. v. HAMILTON, Atty. Gen. (MOLLER, Intervener.

No. 26973.

Supreme Court of Washington

April 20, 1938

Department 2.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Action by John D. Reagh and others, as trustees under the will of Charles Schalkenbach, deceased, against George W. Hamilton as Attorney General of the State of Washington, for adjudication concerning certain provisions of the will of Charles Schalkenbach, deceased, wherein Mollie Peirce Moller intervened by leave of court, attacking validity of trust created by will. From a decree construing the provisions of the will and dismissing the petition in intervention defendant and intervener appeal.

Affirmed.

G. W Hamilton, Atty. Gen., and L. C. Brodbeck, of Olympia, for appellant Attorney General.

James G. Mulroy, of Seattle, for appellant intervener.

Matthew Stafford, of Seattle, for respondents.

BLAKE Justice.

This appeal presents a third attempt to defeat a trust set up in the will of Charles Schalkenbach to establish 'a home for orphaned or abandoned working boys.' See Reagh v. Dickey, 183 Wash. 564, 48 P.2d 941; Reagh v. Schalkenbach, 185 Wash. 527, 56 P.2d 673. While a complete history of the will and previous litigation to which it has been subjected may be found in the cases cited, we shall briefly recapitulate the main events.

In 1926, Charles Schalkenbach and his wife, Minnie Wood Schalkenbach, entered into an agreement to execute identic wills providing for, and devoting their entire community estate to, two alternative trusts: One for the establishment of a 'municipally owned bank'; the other for the establishment of a home for orphaned or abandoned working boys.

Charles Schalkenbach died shortly after executing his will. On petition of his executors, who were also named as trustees, the will was admitted to probate in the superior court of King county. At the conclusion of the administration, the court entered its decree distributing Mrs. Schalkenbach's interest in the community estate to her, and Mr. Schalkenbach's to the trustees named in his will. The decree, however, provided: 'No adjudication is herein intended to be made concerning the validity of either of said trusts.'

Thereafter, the trustees brought an action in the superior court of King county, to which Mrs. Schalkenbach was a party, seeking an adjudication as to the validity of the trusts provided for in the will. In that case, the court held the provisions of the will providing for a municipal bank invalid, but sustained the validity of the trust providing for a home for orphaned and abandoned boys. A decree, from which no appeal was taken, was accordingly entered.

Subsequently, Mrs. Schalkenbach died, leaving a will by which she left her estate to certain relatives, among whom was a niece, Mollie Peirce Moller, one of the appellants in the case at bar. Her will having been admitted to probate in the superior court of King county, the trustees under the will of Charles Schalkenbach brought an action against the executors and devisees under Mrs. Schalkenbach's will, for specific performance of the agreement she made with her late husband. The devisees of Mrs. Schalkenbach filed a cross-complaint, seeking to set aside the trust created by the will of Charles Schalkenbach, and to have the trust estate declared to be a part of the estate of Mrs. Schalkenbach. Upon the issues so presented, the court denied relief to both parties. In other words, it at once sustained the will of Mrs. Schalkenbach, devising her property to her relatives, and again upheld the trust for orphaned and abandoned boys provided for in the will of Mr. Schalkenbach. From the decree accordingly entered, Mollie Peirce Moller and the trustees under the will of Charles Schalkenbach appealed. This court affirmed. Reagh v. Dickey, supra.

After that decision of this court, Mollie Peirce Moller filed another petition in the superior court of King county, seeking to set aside the trust created by the will of Charles Schalkenbach. The court sustained a demurrer to her petition, and entered judgment of dismissal. This court affirmed. Reagh v. Schalkenbach, supra.

With this background in mind, we shall now discuss the issues raised in the case at bar. The trustees under the will of Charles Schalkenbach, desiring an adjudication in an adversary proceeding of certain of the provisions of the will, brought this action, in which the Attorney General was named as defendant. The action was brought in King county, but was later transferred to Thurston county. While the case was pending in King county, Mollie Peirce Moller made application for leave to intervene, which the court granted. She filed a complaint in intervention, again attacking the validity of the trust for orphaned and abandoned boys. Former adjudication of the issue appearing on the face of her complaint, the court sustained a demurrer. Without leave of court, she filed an amended complaint in intervention, omitting reference to the former litigation. Upon motion of plaintiffs, the court entered an order striking the amended complaint in intervention and dismissing the cause of action therein set forth, with prejudice. The intervener appealed from that order, which appeal is now pending in this court as cause No. 26842, 78 P.2d 559. Before that appeal was taken, however, plaintiffs had moved to strike from the order that portion dismissing the cause of action set up in the amended complaint.

In the meantime, the Attorney General filed an answer to plaintiffs' petition. In his answer, the Attorney General set up an affirmative defense challenging the validity of the trust created by the will of Charles Schalkenbach for orphaned and abandoned boys. Plaintiffs filed a reply to the affirmative defense.

With the issues thus made up, the cause went to trial. The court entered a decree dismissing with prejudice Mollie Peirce Moller's amended complaint in intervention, adjudicating again the validity of the trust, and construing the provisions of the will relating thereto which were brought to the attention of the court by the petition of the trustees. From this decree, the Attorney General and Mollie Peirce Moller appeal.

We shall first dispose of the latter's appeal.

The court having sustained the demurrer to the complaint in intervention, for the reason that it appeared on the face of the pleading that the issue raised had been previously adjudicated, it was quite proper to strike as sham and frivolous, the amended complaint, which omitted the allegations showing former adjudication. Hansen v. Bank of California, 189 Wash. 454, 66 P.2d 303. But, in dismissing the cause of action, the court entered a judgment from which it was necessary for the intervener to appeal, if she wished to preserve her right to a review. Pelly v. Behneman, 168 Wash. 465, 12 P.2d 422. Intervener therefore insists that, since she had appealed from that order, the trial court was without jurisdiction to again adjudge, in the decree on the merits, that her cause of action be dismissed with prejudice. If this contention is sustained, the consequence will be that the final decree is ineffective, in so far as it adjudges that the amended complaint in intervention be dismissed with prejudice. Since the judgment of dismissal contained in the order striking the amended complaint in intervention was prematurely entered, it would also follow that that judgment would have to be...