Stahl v. Schwartz

• Decision Date: 27 January 1912
• Citation: 67 Wash. 25,120 P. 856
• Parties: STAHL v. SCHWARTZ.
• Court: Washington Supreme Court

120 P. 856

67 Wash. 25

STAHL v. SCHWARTZ.

Supreme Court of Washington

January 27, 1912

Department 2. Appeal from Superior Court, Walla Walla County; Thos. H Brents, Judge.

Action by Harriet Stahl against Lulu Schwartz, personally and as executrix of Catherine Stahl, deceased. Judgment for plaintiff. Defendant appeals. Affirmed.

Dunphy Evans & Garrecht, for appellant.

Rader &amp Barker, for respondent.

CHADWICK J.

Catherine Stahl died testate on April 16, 1908, leaving an estate which was appraised at $102,825. Her will provided:

'1. I direct the payment of all my just debts out of my estate.

'2. To each of my grandchildren, Magdalene Louise, Ernest William and Henrietta, children of my deceased son, Henry Stahl, I give and bequeath ten thousand dollars, the said sum without interest to be paid to each of my said grandchildren on the arrival of each at the age of majority. * * *

'3. I will and direct that none of my real estate be sold for five years after my death.

'4. I give, devise and bequeath unto my daughter, Lulu Schwartz, one-half of the remainder of my property of whatsoever character and wheresoever situated, of which I may die seized, to be hers absolutely.

'5. In the other half of all my property of whatsoever character and wheresoever situated, of which I may die seized, I will, bequeath and devise a life estate to my son, Frank H. Stahl. After determination of said life estate, I will, devise and bequeath the remainder of said one-half of all my estate to any child or children of my said son, Frank H. Stahl, born to him in lawful wedlock after the date of this will, but should there be no such child or children born to him in lawful wedlock after the date of this will, or the issue of such child or children, I then give, devise and bequeath said remaining one-half of my estate as follows: One-half thereof to the children of my deceased son, Henry H. Stahl in equal shares and one-half thereof to the children of my daughter, Lulu Schwartz in equal shares, subject, however, to a trust to pay the income thereof to the surviving widow of my said son, Frank H. Stahl, during her widowhood, but should she remarry she is thereupon to be paid out of the trust estate, five thousand dollars and all the interest of said widow in said estate is thereupon to cease and be determined.

'6. The contingent provisions herein are not to be construed as either hindering the segregation of my estate or as preventing the same remaining intact after the year of administration. * * * And I give unto my said executors full power to manage and control and in any way use and deal with any and all property of my estate during its administration without any application to any court for leave or confirmation. I do also empower my said executors to continue any business conducted by me or dispose of the same on such terms as they may see fit. In making investments or reinvestments or in conducting or continuing any business said executors are expressly authorized and empowered to proceed and act as they may deem wise and prudent; all without leave or approval of any court and without liability or responsibility for the consequences of their acts or for losses incurred as a result thereof.'

Her son, Frank H. Stahl, died October 28, 1909, leaving plaintiff, Harriet Stahl, his widow. Just after the death of Frank H. Stahl, defendant, Lulu Schwartz, who had the active management of the estate prior to the death of Frank H. Stahl, took up with plaintiff the matter of the future management and disposition of the estate, and, proceeding upon the theory that the specific legacies provided in the will were payable out of the income rather than the body of the estate, an agreement was entered into, the material parts of which follow:

'Witnesseth: That whereas Catherine Stahl died leaving her last will and testament, bearing date January 30, 1907, heretofore duly admitted to probate in the superior court of the state of Washington, for Walla Walla county, as the last will and testament of decedent, reference to which is hereto made; and whereas, her surviving son, Frank H. Stahl, has recently died, leaving surviving him said second party as his widow; and whereas, the will of decedent provides that each of her grandchildren, Magdalene Louise, Ernest William and Henrietta, children of her deceased son, Henry Stahl, shall each be paid at the age of majority the sum of $10,000.00 without interest; and whereas, each of the parties hereto are mutually desirous of creating a fund out of the rents, issues and profits of the estate of decedent to be applied towards the payment to each of said grandchildren their respective bequests of $10,000.00 each, on the arrival of each of them at the age of majority: Now, therefore, in consideration of the premises and the mutual benefits to be derived therefrom between each of the parties hereto, and the sum of one dollar this day in hand paid each to the other, said parties hereto mutually covenant and agree as follows, to wit: That each party hereto shall be paid out of the income of the estate of decedent, on or before the 15th day of each and every month hereafter, the sum of $100.00, until the aforesaid named grandchildren shall have been paid at their majority the sum of $10,000.00 each under the terms and in the manner provided therefor in the last will and testament of decedent. That after each and every of said grandchildren have been fully paid their respective bequests aforesaid, and as provided for in said will of decedent, each party hereto shall be paid out of the income of the estate of decedent on or before the 15th day of each and every month thereafter, the sum of $100.00, and on or before the 15th day of January, of each and every succeeding year after the payment of the aforesaid bequests to the aforesaid named grandchildren, each party hereto shall be entitled to an equal undivided one-half of the residue of the net income received from the estate of decedent, less, however, the sum of $1,000.00, to be kept on hand to be used for operating expenses incident to the care and maintenance of the estate of decedent. That any debts owing by decedent, or any debts or expenses incurred in the administration and settlement of the estate of decedent, shall also be deducted from any income therefrom. That, should said second party remarry, then she is to be paid thereafter the sum of $5,000.00, and no more, as her full interest in the estate of decedent as is provided for under the terms of said last will and testament of decedent, reference to which said last will and testament is hereto made for more particularity, and upon any such remarriage by her this agreement shall terminate.'

The parties acted upon this agreement until August 4, 1910, when plaintiff brought this suit, praying that the contract be set aside; that an accounting be had; and that she be paid such proportion of the estate as she is entitled to under the will. Plaintiff alleged that she was induced to enter into the contract by the art and intrigue of the defendant, Lulu Schwartz, who, by representations which were false and fraudulent, led her to believe that one-half of the net income of the estate would amount to but little, if any, more than $100 per month; that plaintiff was not entitled to anything until after the legacies had been paid, and that haste was necessary in order to defeat the possible claim of a child, alleged to be the daughter of Frank H. Stahl; that at the time she signed the agreement she had never seen the will, and relied wholly upon the representations of defendant, who was alleged to be a woman of large experience in business and of unusual shrewdness in handling property. It is further alleged that, as soon as plaintiff ascertained her legal rights, she began this action. A trial was had, after issue joined, upon the material allegations of the complaint, and the trial judge was of opinion that the contract best served the interests of all parties, and should be allowed to stand as a definition of the right of plaintiff and defendant and of their future relation to the estate. Thereafter the court, being further informed, and conceiving that he had erred in his construction of the will, granted a motion for a new trial. At this point, we meet the first assignment of error. Defendant filed a motion for a change of venue, or, if that could not be had, that another judge be called to try the case. This motion, supported by an affidavit, alleging the bias and partisanship of the judge, was denied, and the case proceeded to trial.

The real meat of the affidavit of prejudice lies in this: That after a full hearing at the former trial, the court found that there had been no overreaching or fraudulent representations, that Mrs. Schwartz had acted in good faith, and that the contract was made with sufficient understanding to sustain it; and, further: 'I will say frankly I see no ground which might justify me in setting aside the contract, and I think it will be better for all parties that they go on under the contract and endeavor to so manage the estate as to pay these legacies, and leave something to be divided between the parties after it is done.' It is also alleged that the judge was overactive in an endeavor to promote a settlement between the parties. In all this we find no warrant for holding that there was a sufficient, or any, show of bias or prejudice. Upon motion, the trial court has a right to set aside any decree or judgment if, in his opinion, justice has not been done ( Sylvester v. Olson...