In Re Williams' Estate , 167 Wash. 524 ( 1932 )

No such doubt exists in my mind as is suggested by Judge Beals in his dissent herein, concurred in by the Chief Justice, concerning the intended and undoubted effect of the majority decision in the Woodcock case, supra. If the majority decision there did not determine that paragraph three of the will was valid, although in some respects ambiguous, it certainly contained that assurance in favor of these same employees, who relied upon it and acted accordingly. It was there decided that their complaint stated a cause of action to the legal effect that the provisions of the will created a precatory trust, but designated certain provisions which were ambiguous, and remanded the case to receive

". . . extrinsic evidence to ascertain the intent of the testator as to the conditions under which the employees are to acquire the mill plant, and the extent of that gift."

It was also there directed that,

". . . to the end that one trial may result in the distribution of the estate, the trial court is also directed to require the trustees to submit, by cross-complaint or by answer, their construction of the will and their plan for carrying out the intention of the testator as interpreted by them . . .;"

all of which was done by the trial court, the trustees and the employees, in strict compliance with that direction, — now nothing but an idle gesture.

Judges Main, Fullerton, and I concurred with the very cogent dissent of Judge Parker against the decision by a bare majority of the court that the same paragraph was valid which is now held invalid. That decision should now constitute the law of this case, regardless of ancient precedents supporting the very able opinion of Judge Herman, by which the parties and this court (including the minority) should be concluded, unless expressly overruled. That effect is accomplished sub silentio.

I concur in the view expressed by Judge Beals that the plan submitted by the surviving trustee and approved by the court is in some particulars unreasonable and not in accord with the intent of the testator, and also as to the determination of the Winifred I. Williams group of appellants, and that amount of attorney's fee to be paid the attorney for appellant Hannah E. Williams is excessive.

For the reasons herein stated, I am compelled to dissent from the majority decision.