Richardson v. Danson

• Decision Date: 20 May 1954
• Docket Number: No. 32749,32749
• Parties: RICHARDSON et al. v. DANSON et al.
• Court: Washington Supreme Court

Page 760

44 Wn.2d 760

270 P.2d 802

RICHARDSON et al. v. DANSON et al.

No. 32749.

Supreme Court of Washington, Department 2.

May 20, 1954.

Rehearing Denied June 17, 1954.

A. O. Colburn, Joseph A. Simpson, Spokane, for appellants.

Joseph E. Hurley, Spokane, for respondents.

SCHWELLENBACH, Justice.

This action was brought by the sister and other heirs at law (who were not named in the will) of Henry Wiltzius under the declaratory judgment statute, seeking a declaration of the provisions of his will and a construction thereof. The language in each specific devise of real property was as follows:

'Third: I hereby give, devise and bequeath, unto my nephew, Clarence Wiltzius, of Lamont, Washington, the following described land located in Lincoln County, Washington, to-wit:

'That part of the S 1/2 of the N 1/2 of Sec. 6 lying south of the County Road (approximately 19 acres); The S 1/2 of Sec. 6 and the E 1/2 of Sec. 7 in Twp. 21, N, Range 39 E.W.M., Lincoln County, Washington;

Subject, however, to the following terms and conditions:

'That my said nephews shall have the use and occupancy and right to farm such land and the income therefrom during the period of twenty years from the date of my death; Provided, however, that he pay all taxes and assessments levied thereon during such twenty-year period, and provided that such land shall not be sold or encumbered by mortgage or any other manner during such period of twenty years.'

The fifth clause gave, devised and bequeathed unto Russell A. Brown 'all of the rest, residue and remainder of my estate that I own at the time of my death, whether real personal or mixed' subject to the same conditions as were included in the other devises. However, there was nothing in the will providing for the disposition of any of the property in the event that any of the conditions were not carried out.

The complaint alleged that a controversy had arisen between the plaintiffs and the defendants as to their legal rights; that plaintiffs contended that the will contained conditions precedent, which were void because each condition restricted the alienation of real property, contrary to law, and that the conditions were such an integral part of each of the devises that the entire devise was void.

The trial court sustained a demurrer to the complaint and plaintiffs refused to plead further. Judgment of dismissal was entered and this appeal follows.

Appellants' first assignment of error is that the court erred in sustaining the demurrer to the amended complaint. The general rule on this question is stated in 1 Anderson, Declaratory Judgments, (2d ed.) 740, § 318:

'When an action is filed for a declaratory judgment and the plaintiffs set forth facts of an actual controversy concerning some matter covered by the declaratory judgment statute, it may be stated generally that it is the duty of the trial court to overrule a demurrer to the plaintiff's pleading and proceed with the case in accordance with the provisions of the statute.'

On Page 741 of the same text, the author states:

'A demurrer in proper case may be interposed to the plaintiff's pleading in a declaratory judgment action, as, for example, where the plaintiff's pleading shows that there is no justiciable controversy existing between the parties.'

The exact question herein involved is a matter of first impression in this state. We quote the following statements of courts from other jurisdictions:

City of Cherryvale v. Wilson, 153 Kan. 505, 112 P.2d 111, 115:

'It is rare that a demurrer is an appropriate pleading for the defendant to file to a petition for a declaratory judgment. * * *' Cabell v. City of Cottage Grove, 170 Or. 256, 130 P.2d 1013, 1015, 144 A.L.R. 286:

'* * * The test of sufficiency of such a complaint is not whether it shows that the plaintiff is entitled to a declaration of rights in accordance with his theory, but whether he is entitled to a declaration of rights at all. Even though the plaintiff is on the wrong side of the controversy, if he states the existence of a controversy which should be settled by the court under the Declaratory Judgment Law, he has stated a cause of suit. * * *'

Maguire v. Hibernia Savings & Loan Society, 23 Cal.2d 719, 146 P.2d 673, 677, 151 A.L.R. 1062:

'* * * A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the respective parties under a written instrument and requests that these rights and duties be adjudged by the court. * * *'

The object of the declaratory judgment act is to obtain a declaration from the court concerning a justiciable controversy between the parties.

RCW 7.24.020 provides:

'A person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of contruction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.'

The complaint herein prayed for a judgment declaring the rights of the parties under the will and for a determination of the validity of the provisions therein with respect to the real estate. It is clear that there is a dispute between the parties as to the meaning and effect of the terms of the will. It was not proper to dispose of the controversy by sustaining the demurrer. In Cabell v. Cottage Grove, supra, the court said:

'In the present case the trial judge, in passing on the demurrers, rendered an opinion in writing which sustained the position of the defendants and entered a decree dismissing the suit. Since the complaint stated a justiciable controversy, the demurrers should have been overruled, and, after the filing of an answer which presumably would have admitted the existence of the controversy alleged, a decree containing a declaration of rights should have been entered. Consequently, it will be necessary to reverse the decree; but, to obviate another appeal, we deem it proper to state our views upon the merits.'

After discussing the merits the court concluded:

'As hereinabove indicated, the opinion of the circuit judge filed in the case is in harmony with the foregoing views; but, for the error in sustaining the demurrers and dismissing the suit, it will be necessary to reverse the decree and remand the cause for further proceedings. If is so ordered.'

We are going to go one step further than the Oregon court did. We are not only going to discuss the merits; we are going to direct a judgment on the merits. We have everything before us which will be necessary to declare the rights of the parties. We find no ambiguity in the will which would necessitate oral testimony to be given in order to assist us in interpreting it.

Were the conditions annexed to the devises precedent? In the case of In re Quick's Estate, 33 Wash.2d 568, 206 P.2d 489, 491, we quoted from Page on Wills:

"Conditions as to their effect upon the estate to which they are annexed are of two kinds, precedent and subsequent.

"A condition precedent is an event the happening or not happening of which causes an estate to vest or to be enlarged. A condition subsequent is an event the happening or not happening of which determines an estate already vested.' 3 Page on Wills 744, Conditions, § 1278.

"Whether a condition is precedent or subsequent depends upon the intention of testator as expressed in the will when read in the light of the surrounding circumstances. It is often difficult to distinguish between the two. The use of the term 'condition precedent' is not conclusive; and words which, with one context, create a condition precedent, may create a condition subsequent with a different context.

"It has been said that a condition which would ordinarily be considered precedent may be construed as a condition subsequent where the gift is to a charity.

"As between precedent and subsequent conditions, subsequent conditions are preferred in construction, but if the language of the will shows that testator intended to create an estate upon condition precedent, effect will be given thereto.

"If the performance of the condition may, by the terms of...