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practice to construe a will by formal order or decree. That is true as to all final determinations in the county court from which appeals

Appeal-when lies-construction of will.

may be taken. However, we think the appeal was properly taken in this case, and this court has jurisdiction to proceed to the merits of the case.

The will construed contained two clauses which are in opposition, if the language is to be considered in its literal sense. The third clause of the will is as follows: "I give, devise and bequeath all the rest of my property, personal and real, whichsoever and wherever same may be, to my beloved wife Susan Jansen absolutely with full power to sell at any time she may see fit."


The fourth clause provides: direct that after the demise of my beloved wife Susan Jansen the following property be given to my son Edward Jansen"-and then follow certain described properties which are included in the third bequest. The third bequest uses apt terms to devise, absolutely and without condition of any kind, the property described to the widow. Not only is the property devised absolutely, but it is added that the wife shall have full power to sell at any time she sees fit. In order to carry out the clear purpose of the testator in the third clause of the will, and to give effect to the fourth clause, we must consider the evident intent of the testator. It would seem that he intended the wife to have the property in fee absolute, with power to sell, but that, in case the property was not sold upon her death, the testator expressed the wish or desire that she should provide that the son should inherit from his mother certain portions thereof, as described in the fourth clause of the will. So, the word "direct" must

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242; 2 Underhill, Wills, § 689; L.R.A.1917C, 1001, 1004. The rule is stated in Schouler, Wills, 5th ed. vol. 1, p. 703: "When real estate is given absolutely to one person, with a gift over to another of such portion as may remain undisposed of by the first taker at his death, the gift over is void as repugnant to the absolute property first given; and it is also established law that, where an estate is given to a person generally or indefinitely, with a power of disposition, or to him, his heirs and assigns forever, it carries a fee, and any limitation over or qualifying expression of less import is void for repugnancy."

In this case the testator's heirs were his wife and three sons. Each son was given $100, and the widow given the balance of the estate, amounting to a little over $13,000. Before his death testator had sold his farm to the oldest son and taken a mortgage back, which mortgage constituted the greater part of the estate. It seems probable that the testator had in mind that his widow would devise his estate to the three sons, and that he thought the lands mentioned in the fourth clause of the will, adjoining the farm of the oldest son, ought to go to such son as his portion of his inheritance from the mother, and the testator thus indicated in his will. The county court correctly construed the will in accordance with this opinion.

The determination of the County Court, appealed from, is affirmed.


The question as to when a trust may be deemed to have been created by precatory expressions is discussed in an annotation appended to RE HOCHBRUNN, post, 10. The bearing of the power of the donee over the subject-matter upon this question is discussed in subd. III. n, of such annotation; while the cases involving expressions similar to that employed in RE JANSEN, ante, 5, are reviewed in subd. IV. S.

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A provision in a single paragraph of a will giving testator's brother the residue of his estate with "the special request" that he pay a designated sum to testator's sister as soon as possible "after my decease," payments to be made in instalments if necessary, creates an enforceable precatory trust. [See annotation on this question beginning on page 10.]

APPEAL by certain parties from an order of the Superior Court for King County (Dykeman, J.) directing distribution of a portion of the estate of decedent in favor of his sister. Affirmed.

The facts are stated in the opinion Messrs. Harry I. Stafford and Tennant & Carmody for appellants.

Messrs. Herr, Bayley, & Croson and Ofell H. Johnson, for respondent:

The intention of a testator as expressed in his will must prevail and be given full effect.

Shufeldt v. Shufeldt, 130 Wash. 253, 227 Pac. 6; Martin v. Moore, 49 Wash. 288, 94 Pac. 1087; Smith v. Bell, 6 Pet. 68, 8 L. ed. 322; Colton v. Colton, 127 U. S. 322, 32 L. ed. 146, 8 Sup. Ct. Rep. 1164.

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Re Hamilton, 181 Cal. 758, 186 Pac. 587; Re Marti, 132 Cal. 666, 61 Pac. 965, 64 Pac. 1071; Hunt v. Hunt, 18 Wash. 14, 50 Pac. 578; 2 Alexander, Wills, 1918, p. 1596; 2 Redf. Wills, 3d ed. p. 446; Re Tresidder, 70 Wash. 15, 125 Pac. 1034; Colton v. Colton, 127 U. S. 322, 32 L. ed. 146, 8 Sup. Ct. Rep. 1164; Foley v. Parry, 2 Myl. & K. 138, 39 Eng. Reprint, 897; Pembroke Academy v. Epsom School Dist. 75 N. H. 408, 37 L.R.A. (N.S.) 646, 75 Atl. 100; Daly v. Daly, 142 Tenn. 242, 218 S. W. 213; Seefried v. Clarke, 113 Va. 365, 74 S. E. 204; Hess v. Singler,

of the court.

114 Mass. 56; Hays v. Harris, 73 W. Va. 17, 80 S. E. 827; Deacon v. Cobson, 83 N. J. Eq. 122, 89 Atl. 1029; Re Dewey, 45 Utah, 96, 143 Pac. 124, Ann. Cas. 1918A, 475; 3 Story, Eq. Jur. 14th ed. 1918, § 1444; 2 Schouler, Wills, 6th ed. §§ 1370, 1371; Warner v. Bates, 98 Mass. 274; Remsen, Wills, 1913, p. 261; Knox v. Knox, 59 Wis. 172. 48 Am. Rep. 487, 18 N. W. 155. Mitchell, J., delivered the opinion of the court:

The appeal in this case is from an order in favor of Elise Froch, née Hochbrunn, directing distribution of a portion of the estate of Ferdinand Hochbrunn, deceased. The decedent, Ferdinand Hochbrunn, died in and a resident of King county, Wash., on October 13, 1921, leaving a will which was admitted to probate in the superior court of that county on January 19, 1922. This action involves the construction of the following provision of the will: "First, After all just claims against my estate shall have been adjusted and satisfied in full, including those of my last illness, funeral expenses, burial grounds, and the sum of five hundred ($500) dollars to each of my executors, hereinafter named, I give and bequeath to my brother Henry

Hochbrunn, now residing at #371 29th street, San Francisco, California, the entire residue and remainder of my estate to which I may be entitled at the time of my decease, both real, personal or mixed, and wheresoever located at the time of my decease, with the special request to my said brother that he pay to my sister, Elisa Hochbrunn, of Schwerin, Mecklenburg-Schwerin, Germany, the sum of ten thousand ($10,000) dollars out of the proceeds of my estate as soon as possible after my decease; the same may be paid to her by installments, if necessary, but request that no unnecessary delay be made, provided she may survive me."

If the language in the will created a trust in favor of the respondent, the judgment appealed from must be affirmed.


It is unnecessary to discuss the origin or to review the great number of judicial decisions in England and in this country with regard to the application of the doctrine of precatory trusts. The sum total of the doctrine is succinctly stated in the case of Hunt v. Hunt, 18 Wash. 14, 50 Pac. 578, as follows: precatory trust arises out of words of 'entreaty, wish, expectation, request, or recommendation frequently employed in wills,' and a trust has been created by such words as 'hope,' 'wish,' 'request,' etc., if they be not so modified by the context as to amount to no more than mere suggestions to be acted upon or not according to the caprice of the interested devisee, or negatived by other expressions indicating a contrary intention, and the subject and object be sufficiently certain."

In that case it was found that no trust had been created by the will and codicil involved, for the reasons that other expressions in the instruments indicated a contrary, controlling intention, and that the specific amount mentioned in the socalled trust clause, together with other direct specific bequests, more than exhausted the estate which the testator possessed. Neither of

those reasons applies in this case, as will be observed from the language of the will and in consideration of the fact that, without taking into account any other property belonging to the estate, there remained in the hands of the executor upon his making his final report and petition for distribution more than $23,000 in cash to be distributed.

The fundamental and controlling rule for the construction of wills is familiar. It is as stated by the Chief Justice in Smith v. Bell, 6 Pet. 68, 8 L. ed. 322, as follows: "The first and great rule in the exposition of wills, to which all rules must bend, is that the intention of the testator, expressed in his will, shall prevail, provided it be consistent with the rules of law."

Our own cases are to the same effect. They are listed in Shufeldt v. Shufeldt, 130 Wash. 253, 227 Pac. 6, and, notwithstanding the general familiarity of the rule, it is so provided by statute in this state. Rem. Comp. Stat. § 1415.

Now, noticing the language in this will, it will be seen that the bequest to the brother, with the request that he apply a designated portion of it to the benefit of the testator's sister. is all contained in a single continuous paragraph. The two ran together in the testator's mind. The benefit for the sister is immediately associated with the bequest to the brother. It was not only his request, but special request, that the brother in this country pay a specified portion of the bequest to him to his sister in Germany. The executors named in the will were residents of Seattle and, though "long-time friends" of the testator, manifestly, were not relatives. The benefit to the sister, instead of being for delivery direct through the executors, was intrusted to a brother. That was the testator's way of giving it to his sister. The amount to be paid is not subject to the discretion of any one. It is certain, $10,000. The time for the payment of it was made as certain as it was possible to fix it, "as soon as possi

(138 Wash. 415, 244 Pac. 698.)

ble after my decease." There is the picture of at least relatively necessitous circumstances on the part of the sister, which of itself shows the intent of the testator. It says: "The same may be paid to her by installments, if necessary." And, not yet satisfied, he added: "But request that no unnecessary delay be made." The object of his bounty was his sister. Can there be any question as to what he meant? Why should he be so specific and insistent, unless he intended to fasten upon the legacy to his brother a trust in favor of his sister to a portion of it in an amount precisely mentioned? True he used the word "request," made more important by the qualifying word "special," but, although intending $10,000 for his sister, he was by his language "special request" used in the will addressing his brother. "The mode is only civility," according to the phrase of Lord Loughborough in Malin v. Keighley, 2 Ves. Jr. 333, 529, 30 Eng. Reprint, 659, 760.

Where a person makes a special request of another, who is independent of him, it may be altogether ignored; but if in making a bequest to him capable of being fulfilled, and in the same instance he specially requests that a portion of it be paid to another at a time sufficiently definite, the courteous language used makes it no less imperative than if he had commanded or ordered it to be paid. There is no technical meaning of the words. "special request," or even the simple word "request," inconsistent with its being a common word that any one, whether layman or lawyer, may use in his will to express his intention of imposing an obligation. In Colton v. Colton, 127 U. S. 300, 32 L. ed. 138, 8 Sup. Ct. Rep. 1164, it was said: "It is an error to suppose that the word 'request' necessarily imports an option to refuse, and ex cludes the idea of obedience as corresponding duty. If a testator requests his executor to pay a given sum to a particular person,

the legacy would be complete and recoverable. According to its context and manifest use, an expression of desire or wish will often be equivalent to a positive direction, where that is the evident purpose and meaning of the testator; as, where a testator desired that all of his just debts, and those of a firm for which he was not liable, should be paid as soon as convenient after his decease, it was construed to operate as a legacy in favor of the creditors of the latter. Burt v. Herron, 66 Pa. 400. And in such a case as the present, it would be but natural for the testator to suppose that a request, which, in its terms, implied no alternative, addressed to his widow and principal legatee, would be understood and obeyed as strictly as though it were couched in the language of direction and command."

The words "request" and "desire" used in wills have often been held to be imperative and entirely sufficient to create a trust. Some of such cases, which in turn refer to many others, are as follows: Pembroke Academy v. Epsom School Dist. 75 N. H. 408, 37 L.R.A. (N.S.) 646, 75 Atl. 100; Re Hamilton, 181 Cal. 758, 186 Pac. 587; Daly v. Daly, 142 Tenn. 242, 218 S. W. 213; Seefried v. Clarke, 113 Va. 365, 74 S. E. 204; Hess v. Singler, 114 Mass. 56; Deacon v. Colson, 83 N. J. Eq. 122, 89 Atl. 1029; Re Dewey, 45 Utah, 98, 143 Pac. 124, Ann. Cas. 1918A, 475; 3 Story, Eq. Jur. 14th ed. 1918, § 1444.

There are cases, cited by the appellants, holding such trusts were not created, such as the Hunt Case, supra, Lanigan v. Miles, 102 Wash. 82, 172 Pac. 894, and others, upon an examination of which it will be found that the language employed in the instruments under consideration was mediately or immediately used in connection with other inconsistent and more dominating provisions of the instruments, or lacking in definiteness and certainty as to amount, or left optional with the legatee to comply or refuse. A re

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b. Fact that person to whom precatory words are addressed is spouse of testator, 34.

c. Coupling of gift and request, 34.

d. Gift to executor, 34.

e. Separate legacy to donee, 34.

f. Use of same words in other parts of will, 34.

g. Failure to use phraseology ordinarily employed in creating trusts, 34.

h. Request embracing property over which testator has no control, 35.

i. Unreasonableness of request, 35.

j. Fact that trust would cause difficulty and embarrassment, 35.

k. Disclaimer of intention to create trust, 35.

1. Fact that request is as to disposition of property at death, 36.

m. Scope of discretion conferred upon donee, 36.

n. Power of donee over subject-matter, 36.

o. Absolute character of gift, 36.

p. Uncertainty as to subject-matter or object, 39.

IV. Review of the decisions, arranged according to the precatory expression


a. Prefatory statement, 42.

b. "Advise," 43.

c. "Allow," 43.

d. "Ask," 43.

e. "Assume," 43.

f. "Beg," 43.

g. "Beg and request," 43.

h. "Being well assured," 43.

i. "Belief," "believe," and "believing," 43.

j. "Charge," 45.

k. "Conjure," 45.

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