Rohne v. Horton

• Decision Date: 22 January 1935
• Docket Number: 25174.
• Citation: Rohne v. Horton, 180 Wash. 428, 40 P.2d 134 (Wash. 1935)
• Parties: ROHNE v. HORTON et al.
• Court: Washington Supreme Court

40 P.2d 134

180 Wash. 428

ROHNE v. HORTON et al.

No. 25174.

Supreme Court of Washington

January 22, 1935

Department 2.

Appeal from Superior Court, King County; Harold Preston, Judge.

Action by Hazel Rebecca Rohne against Charles E. Horton and others. From a judgment for defendants, plaintiff appeals.

Affirmed.

Charles H. Graves and Weter, Roberts & Shefelman all of Seattle, for appellant.

Evans &amp McLaren, of Seattle, for all respondents except the banks.

Poe Falknor, Falknor & Emory, of Seattle, for respondent First Nat. Bank of Seattle, as trustee.

Shorts & Denney and Clinton H. Hartson, all of Seattle, for respondent National Bank of Commerce, as trustee.

HOLCOMB Justice.

This is the third chapter Before this court over the estate of Dexter Horton, deceased. See Trethewey v. Horton, 71 Wash 402, 128 P. 632, 633, and Rohne v. Trethewey, 157 Wash. 62, 288 P. 269.

A noticed motion to strike the statement of facts and dismiss the appeal was passed to the merits for disposition.

The record shows: Appellant prepared a proposed statement of facts and filed it in the office of the King county clerk of the superior court on April 11, 1934, or within the time required by the then rule for filing proposed statements. On the same day she made due service thereof by delivering a copy of the statement to Evans & McLaren, attorneys for the principal defendants, being all the defendants except the First National Bank of Seattle, a corporation, as trustee, and the National Bank of Commerce, a corporation. Evans & McLaren, attorneys for the principal defendants, acknowledged 'due and timely service' of the copy of the statement of facts upon the original statement on that date. On May 12, 1934, all other parties appearing, that is, the two banks, were served with a written notice, which was also then filed, notifying them of the filing and serving of the statement of facts.

On June 20, 1934, all of the defendants were served with a written notice fixing the time of June 29, 1934, and the place for settlement and certification of the statement by the trial judge. On that date it was properly certified.

It will be observed that the statement of facts was served and filed on the principal respondent well within the time required by statute and rule and notice thereof served on the other respondents who were adverse parties to appellant prior to the ten days allowed for proposing amendments to the statement of facts. On the expiration of the time for the settlement of the statement of facts, there having been no amendments proposed, it was settled and certified by the trial judge. This is not a case, therefore, of the failure to file and serve the statement of facts within the jurisdictional limit and does not fall within the rule of the cases cited by respondents, namely: First National Bank of Aberdeen v. Andrews, 11 Wash. 409, 39 P. 672; American Fuel Co. v. Benton, 98 Wash. 26, 167 P. 346; Universal Motor Co. v. McGeorge, 104 Wash. 344, 176 P. 331; In re Rotter's Estate, 148 Wash. 285, 268 P. 866.

The record here brings this case within the rule announced in Hansen v. Nilson, 17 Wash. 606, 50 P. 511; In re Patterson, 98 Wash. 334, 167 P. 924; Metropolitan Club v. Massachusetts Bonding & Insurance Co., 127 Wash. 320, 220 P. 818.

Hence, the motion to strike the statement of facts and dismiss the appeal is not well based and is now denied.

We agree with counsel that the controlling facts are not in dispute and that the chief question here is that of a proper application of the law. Some history of the estate and of the provisions of the will may be found in Trethewey v. Horton, supra, and of the disposition of the estate to the greatgrandchildren of the testator, of whom appellant is one, in Rohne v. Trethewey, supra.

The will provides: 'Upon the decease of my said wife, and after the payment in full of each and every of the bequests and legacies in this will stated, if there shall remain any part of my estate, I give, devise and bequeath all the rest, residue and remainder thereof unto my children Nettie Horton Jones and Caroline Horton, share and share alike; Provided, however, if at the time of such final distribution of such residue, there shall be then living a great grandchild or grandchildren, the descendants of my deceased daughter, Rebecca, as specified in the fourth subdivision of the third clause of this will, then said residue shall be divided and distributed to my said daughters, so that each shall receive one-third thereof and the said grandchild or grandchildren the remaining third thereof.'

Appellant was born on June 27, 1909, attained the age of twenty-one years on June 27, 1930, but one years Before that she had married which, of course, under our statute, would make her of full age. Very shortly afterward she brought the action for accounting against her father and guardian which is reported in Rohne v. Trethewey, 157 Wash. 62, 288 P. 269. At that time all counsel assumed that the incorporation of the Dexter Horton estate as a corporation was valid and the court was misled into making the statement that 'Dexter Horton * * * had bequeathed to his great grandchildren [one of whom was appellant] 692.77 shares of the capital stock of the Dexter Horton Estate, Inc., a corporation, together with approximately $65,000 in cash and securities.' The value of the corporate stock at the time of the appointment of the guardian was approximately $347,000.

Another portion of the will which is quoted in Trethewey v. Horton, supra, will be repeated here, as it is all important: 'I give, devise and bequeath unto my executors hereinafter named and unto the survivor or survivors of them, as trustees, all of my money, property and estate of what name or nature soever and wheresoever situate, with full and ample power, authority and discretion, as I would have if living, to hold, control and to manage, to bargain, sell convey, mortgage, lease or otherwise manage, control, dispose of, settle and distribute the same or any part thereof or interest, with or without notice, in one or more parcels, at such times and for such prices as in their best judgment shall be deemed for the best interest of my estate, beneficiaries and legatees; and in aid of and to limit and control such power, I order and direct my executors and trustees to hold the New York building and the Seattle building and the lands under and appurtenant thereto as one parcel, and to sell or distribute the same together as one parcel, at such time as in their best judgment they can be so without sacrificing my estate and the interests of my beneficiaries, and I expressly relieve any and all purchasers of any duty or liability as to the proper application of the proceeds or moneys paid to my executors and trustees, all in trust however, to and for the following uses and purposes, that is to say:'

This is followed by directions to pay the legacies, fixing no time therefor.

On the same day as the date of the will, Dexter Horton wrote a letter in his own hand which, after making suggestions respecting a cheap and inexpensive funeral and burial for himself, then said: 'I suggest to my heirs and chief beneficiaries that it may be advisable to incorporate and take and hold the New York and Seattle Buildings and any other part of my estate, in the name of such corporation.'

The above letter cannot, of course, be considered as a testamentary direction, but merely, as stated, a suggestion to be followed or not as his trustees deemed advisable. It was not binding upon them in any sense.

The provision of the will above quoted, however, was a binding direction, and in it the executors and trustees were ordered and directed to hold the New York building and Seattle building and the lands appurtenant thereto as one parcel and to sell or distribute the same together as one parcel, at such time as in their best judgment they could do so without sacrifice.

As shown in Trethewey v. Horton, supra, conditions had arisen Before April 15, 1905, which caused the executors and trustees to consider that a corporation should be organized to take title to the above properties, to which the chief beneficiaries and the residuaries then in existence assented.

Upon the organization of the estate into a corporation, it made, executed, and delivered to respondent, now First National Bank of Seattle, a corporation, formerly the Dexter Horton National Bank of Seattle, its deed of trust to secure the payment of $2,100,000 of first mortgage, 6 per cent., sinking fund bonds. This deed of trust was duly recorded. This respondent, which became trustee under that deed of trust, first sought a legal opinion upon the title to the property, which was given by the late John H. Powell, who approved the organization of the estate as a corporation, approved the validity of the corporation in the state of Washington, and approved the issuance of the $2,100,000 par value, 6 per cent. first mortgage bonds. It is well known that the late Mr. Powell was one of the most industrious and able lawyers that ever practiced in this state. Later the Marine National Bank, which became the respondent National Bank of Commerce of Seattle, became a trustee under a second deed of trust securing $400,000 in bonds of the corporation. These bonds were also approved in the opinion of Mr. Powell. It is manifest that all of these bonds have been floated and are probably in general circulation throughout the country.

Upon the conclusion of the trial, the trial judge pro tem., a very widely experienced and able lawyer, gave, in part, the following memorandum opinion:

'Now, if, after she [appellant] became of age, with full knowledge of the facts and being fully advised of her legal rights,--and by that I

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