Sims' Estate, In re
| Decision Date | 04 September 1951 |
| Docket Number | No. 31660,31660 |
| Citation | 39 Wn.2d 288,235 P.2d 204 |
| Court | Washington Supreme Court |
| Parties | In re SIMS' ESTATE. SIMS et al. v. LINDGREN et al. |
Clarence M. George, Howard Frissell and Will Lorenz, Spokane, for appellants.
Harvey Erickson, Frank R. Freeman and John J. Ripple, Spokane, for respondents.
Quare: In the state of Washington, does a bequest and devise to one spouse contained in the will of the other lapse when the beneficiary predeceases the testator?
Joseph L. Sims died January 15, 1949, leaving his entire estate to his wife, Dorothy. She died April 16, 1949, leaving a will executed November 19, 1942, whereby she bequeathed and devised all her property to her husband, Joseph, with no residuary clause. Their estates were probated together.
Dorothy's heirs-at-law, a brother, half brother, and two half sisters, claim by virtue of the laws of descent and are the appellants here. Joseph's children by a former marriage claim that the devise and bequest to him did not lapse and that they are entitled to take as his heirs-at-law, and they are the respondents.
Our answer is that, Joseph having predeceased Dorothy, the bequest and devise to him in her will lapsed, there being no applicable non-lapse statute changing the common-law rule; and, since there was no residuary clause in her will, all of her property (which included all of the property in the Joseph Sims estate) passed by the law of descent to her heirs-at-law, the appellants here. Our non-lapse statute applying to bequests and devises to relatives specifically excepts spouses from its operation, Rem.Supp.1947, § 1404, and its predecessor, Rem.Rev.Stat. § 1404, which applied only to devises to relatives, had contained a similar exception.
If that be not the law applicable to this situation, then lawyers, probate judges, title companies, and the tax commission have long been in grievous error.
But respondents urge that the devise to Joseph did not lapse, and that his heirs-at-law are entitled to have the entire estate of Dorothy distributed to them by virtue of Rem.Rev.Stat. (Sup.) § 1404-1, Laws of 1937, chapter 151, § 1, p. 536, which reads as follows: 'Whenever any person having died leaving a will which has been admitted to probate, shall by said will have given, devised or bequeathed unto any person, a legacy or a devise upon the condition that said person survive him, and not otherwise, such legacy or devise shall lapse and fall into the residue of said estate to be distributed according to the residuary clause, if there be one, of said will, and if there be none then according to the laws of descent, unless said legatee or devisee, as the case may be, or his heirs, administrators, executors, or someone in behalf of such legatee or devisee, shall appear before the court which is administering said estate within seven years from and after the date the said will was admitted to probate, and prove to the satisfaction of the court that the said legatee or devisee, as the case may be, did in fact survive the testator: Provided, however, That in estates now in the course of probate, where the seven-year period above mentioned has already elapsed, such legatee or devisee, his heirs, administrators or executors shall have six months from and after the day this act takes effect to appear and offer proof that said legatee or devisee, as the case may be, did in fact survive the testator.' (Italics ours.)
Appellants construe this section to have application only when a devise or bequest to an individual is conditioned on his surviving the testator, and to mean that, in that event, the devise or bequest lapses if he predeceases the testator (but such devisee or legatee, his heirs or administrator has the right to come into court within seven years after the will is admitted to probate and offer proof that the devisee or legatee did in fact survive the testator).
Respondents, relying heavily on the words 'and not otherwise,' construe this section to mean that no devise or bequest can lapse except in those cases where the testator shall have conditioned the devise or bequest upon the devisee or legatee surviving the testator (and in that case such devisee or legatee, his heirs or administrator has the right to come into court within seven years after the will is admitted to probate and offer proof that the devisee or legatee did in fact survive the testator).
Respondents having persuaded the trial court that their interpretation of Rem.Rev.Stat. (Sup.) § 1404-1, is correct, the court entered an order November 1, 1950, vacating the decree of distribution entered October 4, 1950, by which it was ordered that the estate be distributed to the appellants, and granting a new trial, and thereupon entered a new decree of distribution which distributed the estate to the respondents. This appeal followed.
Respondents urge that, under the appellants' interpretation, Rem.Rev.Stat. (Sup.) § 1404-1, down to the word 'unless,' is but a restatement of the common law, and that it must be presumed that the legislature had something more in mind than a restatement of the common law.
To this there is a two-fold answer: First, the legislature has again and again placed common-law rules in statutory form; second, a study of the four sections of chapter 151 of the Laws of 1937 convinces us that that portion of § 1, Rem.Rev.Stat. (Sup.) § 1404-1, on which respondents rely, is but laying the foundation for the things the legislature had in mind: (a) to insure that a genuine effort would be made to locate such devisees or legatees, Laws of 1937, chapter 151, § 4, p. 538, Rem.Rev.Stat. (Sup.) § 1404-4; (b) to protect their interests if they were absentees within the meaning of chapter 39 of the Laws of 1915, Laws of 1937, chapter 151, § 2, p. 537, Rem.Rev.Stat. (Sup.) § 1404-2; (c) to make such legatees or devisees present evidence within seven years that they did survive the testator, Laws of 1937, chapter 151, § 1, p. 536, Rem.Rev.Stat. (Sup.) § 1404-1; (d) to give those who are anxious to have an estate distributed and closed, such as executors, residuary legatees or heirs-at-law, a procedure whereby, after seven years, that can be done. Laws of 1937, chapter 151, § 3, p. 537, Rem.Rev.Stat. (Sup.) § 1404-3.
It seems to us that any one considering this chapter of the law in its entirety must be convinced that the first portion of § 1 was not intended to be a non-lapse statute. It is in fact a lapse statute, not a non-lapse statute, and its title makes that very clear; it reads 'An Act relating to certain legacies and devises, and providing for the lapse or distribution thereof.' (Italics ours.) To construe this to be a general non-lapse statute would be to make it unconstitutional as a violation of art. II, § 19, of the state constitution, which requires that the subject of the act shall be expressed in its title.
We have examined the non-lapse statutes of every state, and no state, with the exception of Maryland, has or ever had a non-lapse statute such as Rem.Rev.Stat. (Sup.) § 1404-1, would be if the respondents' interpretation were adopted. The usual requirement in non-lapse statutes that the person whose bequest or devise is not to lapse must be a descendant, or at least a relative of the testator, would be omitted, as would the other almost universal requirement that the person whose bequest or devise is not to lapse must leave issue or lineal descendants.
Under respondents' interpretation, § 1404-1 would, without any reference thereto, have superseded the non-lapse statute then in effect, Laws of 1917, chapter 156, § 34, p. 651, Rem.Rev.Stat. § 1404, which provided that there would be no lapse when any estate was devised to any child, grandchild or other relative of the testator, if said devisee should die before the testator, having lineal descendants. It was therein specifically provided that a spouse was not a relative under that section.
Moreover, that interpretation would render totally unnecessary the 1947 amendment of Rem.Rev.Stat. § 1404 (now Rem.Supp.1947, § 1404), the effect of which is to make that section applicable not only to a devise but to a bequest, so that it now reads:
Although we have not, as judges, been heretofore called upon to construe Rem.Rev.Stat. (Sup.) § 1404-1, we have, as practicing lawyers, read this section on numerous occasions, and the interpretation contended for by the respondents has never suggested itself to any of us. While ingenious,...
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Chapter b. changes in beneficiaries prior to testator
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