O'Shaughnessy v. Brooks

• Citation: 153 Wash. 247,279 P. 591
• Decision Date: 02 August 1929
• Docket Number: 21710.
• Court: United States State Supreme Court of Washington
• Parties: O'SHAUGHNESSY v. BROOKS.

279 P. 591

153 Wash. 247

O'SHAUGHNESSY v. BROOKS.

No. 21710.

Supreme Court of Washington

August 2, 1929

Department 1.

Appeal from Superior Court, Lincoln County; Sessions, Judge.

Action by Agnes O'Shaughnessy, as administratrix of the estate of Frank O'Shaughnessy, deceased, against Lucy Brooks. Judgment for plaintiff, and defendant appeals. Reversed.

J. M Geraghty and Alex M. Winston, both of Spokane, for appellant.

HOLCOMB J.

This appeal involves the construction of the last will and testament of Margaret Shaughnessy, otherwise O'Shaughnessy, deceased, and the rights of certain parties thereunder.

Our determination of the matter involved renders all portions of the will unimportant except those contained in paragraph 3 which reads:

'3. I will, devise and bequeath to my said daughter Lucy the Northwest quarter of Section Twenty-seven (27), Township Twenty-five (25) North, Range Thirty-two (32), E. W. M., however upon the following trusts:

'The present whereabouts of my son George is unknown to me. I hope, however, he is alive, and, in that event, I wish to make provision for him. My said daughter Lucy is therefore to hold said last described land in trust for the period of seven years from the date of my death, and if within that time my son George is found, or appears to claim his right, my daughter is to convey the same to him, it being understood that until he does appear the rents, issues and profits of said land, less taxes and other proper charges, are to be retained by my said daughter as her own property.

'Should my son George not be found or appear within the said period of seven years, then I direct my said daughter as trustee to sell said land, and, out of the proceeds thereof, to pay to my said son Frank the sum of Four Thousand ($4,000.00) Dollars, the balance of such proceeds to go to my said daughter absolutely, or, in case of her death before such event, such balance to be paid to the heirs of her body.'

There are other devises and legacies, both residuary and contingent, which we find it unnecessary now to consider.

Margaret Shaughnessy, or O'Shaughnessy, died on February 7, 1920, in Spokane county, Wash. Her will was duly probated in the superior court for Spokane county, and Lucy Brooks, who was nominated therein as executrix, received letters testamentary, qualified, and proceeded with the execution of the will. She continued in the execution of her trust as executrix under the will until April 13, 1921, when a decree of distribution was duly entered in that court which gave certain real estate to Frank Shaughnessy, another son and legatee of the testator, for life and upon his death to Lucy Brooks; certain property (that which is now in controversy) to Lucy Brooks as trustee for George Shaughnessy, Frank Shaughnessy, and heirs subject to the provisions of paragraph 3 of the will; certain other property to Lucy Brooks absolutely; certain other property to Lucy Brooks in trust subject to an outstanding contract to Frank Shaughnessy and to the provisions of paragraph 4 of the will; and all the rest of the property to Lucy Brooks.

The complaint of respondent set forth these facts, and further averred that Frank Shaughnessy died intestate on June 5, 1926, and respondent qualified as administratrix of his estate on February 25, 1927. The complaint then further alleges the terms of the will of Margaret Shaughnessy, deceased; that the decree of distribution was entered as hereinbefore stated; and that George Shaughnessy, to quote the language of the complaint, '* * * has not since the death of said Margaret Shaughnessy, deceased, appeared or otherwise claimed any interest under said trust or in the property therein described although more than seven years has elapsed since the death of said deceased, Margaret Shaughnessy. That more than seven years has elapsed since said George O'Shaughnessy was last heard of and is now presumed in law to be dead.'

The prayer of the complaint is the appellant be adjudged to hold the real estate in question as trustee and not otherwise and directed to sell the same and to pay to respondent the sum of $4,000.

To this complaint appellant interposed a demurrer which was overruled. She then filed an amended answer to the complaint admitting the execution and probate of the will of Margaret Shaughnessy, deceased, the distribution of the estate under the terms of the will, denied the allegations in paragraph V of the complaint to the effect that George Shaughnessy had not since the death of his mother appeared or otherwise claimed any interest in the property in question.

For a first, further, and affirmative answer and defense, appellant alleged that George Shaughnessy, in fact, survived his mother; that on July 4, 1920, his mother having died on February 7, 1920, George wrote letters to appellant, to his brother, respondent's intestate, and to his mother, not knowing that she was dead; that George was then at Denver, Colo.; and that in 1925 George was and is still living in Oakland, Cal., and has communicated in writing with appellant within a month of the date verifying the affirmative defense, which date was December 7, 1927.

There was also a second affirmative defense alleged in the amended answer, not now necessary to notice.

To these two affirmative defenses respondent interposed demurrers which were sustained by the trial court and a decree entered in favor of respondent in...