Townsend v. Charles Schalkenbach Home for Boys, Inc.

• Decision Date: 21 April 1949
• Docket Number: 30732.
• Citation: 205 P.2d 345,33 Wn.2d 255
• Parties: TOWNSEND v. CHARLES SCHALKENBACH HOME FOR BOYS, Inc., et al.
• Court: Washington Supreme Court

205 P.2d 345

33 Wn.2d 255

TOWNSEND v. CHARLES SCHALKENBACH HOME FOR BOYS, Inc., et al.

No. 30732.

Supreme Court of Washington

April 21, 1949

Department 2

Rehearing Denied May 18, 1949.

Suit by Earl F. Townsend, administrator de bonis non of the estates of Charles Schalkenbach and Minnie W. Schalkenbach, husband and wife, deceased, against Charles Schalkenbach Home for Boys, Inc., a Washington corporation, and Smith Troy Attorney General of the State of Washington, to terminate a charitable trust. From a judgment for defendants, plaintiff appeals.

Modified in accordance with opinion.

Appeal from Superior Court, King County; Howard M. Findley, judge.

Elliott & Lee, of Seattle, for appellant.

Matthew Stafford, of Seattle, Stewart N. Lombard, of Walla Walla, and Smith Troy, Harry L. Parr and Jane Dowdle, all of Olympia for respondents.

SCHWELLENBACH Justice.

This is the fourth time that the will of Charles Schalkenbach has been Before this court. For a better understanding of the problem now confronting us, we deem it necessary to briefly review the controversies which have heretofore been Before the courts.

On June 23, 1926, Charles and Minnie Schalkenbach entered into an agreement to make mutual wills. The wills provided that the bulk of their community property would be placed in trust for the establishment of a municipal bank, or, in the alternative, for the establishment of a home for boys. Paragraph Seventh (d), of the husband's will, provided:

'In the event that no city legally qualified to accept the hereinabove mentioned donation accepts the same within the time hereinabove provided, or in the event that the said fund reverts to my said trustees in accordance with the terms of this instrument, I hereby direct my trustees to establish in the City of Seattle, State of Washington, a home for orphaned or abandoned working boys between the ages of twelve and sixteen years, whom are trying to make their own living. Said home shall be nondenominational and no prejudice or preference shall be shown to race, color, religion or character of employment. I direct my trustees, however, to use care and caution in the selection of boys Before their admittance into said home in order to promote and maintain harmony therein. It being an express condition that all boys admitted to the home must be working at least part time, temporary sickness or incapacitation excepted, and be at least partially self-supporting, and that each boy must pay as much as possible for him to pay toward the cost of his board and keep in the home according to the schedule of rates established by the trustees and superintendent.

'For the purpose of establishing said home my said trustees shall purchase, build, or rent within the corporate limits of the City of Seattle, State of Washingon, as near to the center of business as may be, a plain comfortable building suitable for such a home, the amount to be invested in such home to be left to the discretion of the trustees. The rest of the corpus of the trust estate shall be invested as hereinabove provided, and the income thereof used to defray the cost of operating and maintaining such home.

'My said trustees shall employ a suitable and efficient superintendent for said home at a salary to be fixed by them. Said superintendent shall employ all servants necessary to efficiently and economically operate and maintain said home and fix their compensation subject to the approval of the trustees. Such superintendent shall, subject to the approval of the trustees, establish rules and regulations for said home. No boy shall be expelled from said home, except upon the order of a majority of the trustees.

'It is my wish and desire that there shall be established within the home, a system of self government by the boys along the lines of the system in vogue in the George Junior Republic at Chino, California.

'Said home shall be maintained in perpetuity and my trustees are directed to select a suitable name therefor. Said trustees shall be without power, except for the purpose of investment, or the enlargement, maintenance or operation of said home, to expend any of the corpus or income of the trust estate for any purpose whatsoever except as herein provided.

'It is my intention to vest in my trustees the widest discretion possible in the selection of a site or building for said home and in the operation and maintenance thereof, subject to the provisions of this instrument.'

Charles Schalkenbach died July 4, 1926. His will was probated in King county, and, on November 21 1930, a final decree of distribution was entered.

On November 2, 1928, Minnie W. Schalkenbach made a new will, by the terms of which she gave all of her property to certain legatees, among whom were her relatives, friends and local charities, which will, upon her death, was admitted to probate.

On April 22, 1932, after proceedings commenced in King county against the wife, for a construction of the husband's will, a decree was entered holding that the attempt to create a trust for the establishment of a municipal bank, was invalid, and holding that the alternative trust, as provided in subparagraph (d) of the Seventh paragraph, was valid. No appeal was taken from this decree.

Upon the death of the wife a suit for specific performance of the contract of June 23, 1926 was instituted by the trustees of the husband's estate against the executors and beneficiaries under the wife's later will. The trial court held that the contract, including the wife's will, was executed by her under duress of the husband, and was of no effect. Upon appeal that judgment was affirmed. Reagh v. Dickey, 183 Wash. 564, 48 P.2d 941.

A petition was thereafter presented seeking to have the trust for the boys' home declared invalid, based upon certain language in Reagh v. Dickey, supra. This petition was denied and upon appeal the judgment dismissing the petition and holding the trust for the boys' home to be valid was affirmed. Reagh v. Schalkenbach, 185 Wash. 527, 56 P.2d 673.

Later, an action was commenced by the trustees against the attorney general, seeking an interpretation of the will. The action was commenced in King county and transferred to Thurston county. The trial court entered a decree (1) permitting the trustees to form a corporation to take over and manage the trust; and (2) holding that the age limitation in the will for 'orphaned or abandoned working boys between the ages of twelve and sixteen years' (italics ours) referred only to admission of boys to the home; and the age at which they should be discharged was left to the discretion of the trustees. Upon appeal, that judgment was affirmed. Reagh v. Hamilton, 194 Wash. 449, 79 P.2d 555.

The trustees, thereupon, on June 25, 1938, incorporated the Charles Schalkenbach Home for Boys, Inc., and conveyed and transferred all moneys, funds, etc. (approximately $120,000), to the corporation. The corporation then purchased a home near the business center of Seattle and proceeded to carry out the provisions of the trust.

Contacts were made with the Department of Social Security and with the various public and private charities. A superintendent was employed and boys were admitted to the home. At first the venture was successful. The boys were happy and cooperative. It appeared that there was real need for such an institution. Later the project seemed to disintegrate. It is rather difficult to lay a finger on the precise cause of the trouble. The trustees interfered with the operation by the superintendent. Sickness developed in the latter's family, and he lost interest. A new superintendent was employed, and then another. The latter did not have the qualifications required by the state department. The boys became dissatisfied and unruly. Most of them dropped out of the home.

Finally in June, 1943, when only two boys were left in the home, the corporation, through its trustees, in an action against the attorney general, petitioned the superior court for Thurston county for an order temporarily suspending the operation of the home. The petition related the history of the project, the decline in the number of applicants for admission, the cost of operations, and alleged: 'that it is uneconomical and impractical to maintain the home under the conditions hereinabove stated.' On July 26, 1943, the court issued an order authorizing the trustees to suspend the operation of the home 'for a period of two years from June 16, 1943, or the period that the United...