In Re Harper's Estate , 168 Wash. 98 ( 1932 )

I would content myself with simply recording my dissent, if it were not for the fact that I consider the majority opinion contrary to the weight of authority and opposed to the clearly expressed will of the legislature.

The respondent, daughter of Russell Harper and his first wife, was born October 21, 1904. Respondent's mother, Harper's first wife, died in 1908. Harper married the appellant in 1926. He executed his last will and testament December 13, 1929, and died October 4, 1930. No children were born of the second marriage. In his will, the testator did not specifically name his only child, whose mother he deserted a few months prior to the child's birth. No provision was made in the will for the only child of the testator. There is no mention of her in the will either by name or by class. As to that child, Russell Harper died intestate.

The only reference to "child or children" is in paragraph four of the will, which is quoted in the majority opinion. "In case any child, or children, shall hereafter be born to me, I bequeath to each such child $5.00," does not include children then in being. That was not a naming of or a providing for the child in being (the daughter was then twenty-five years old and apparently forgotten by her father), as required by the statute. There was no mention of child or children of the testator as a class, except children thereafter born. There were no words sufficient to manifest the decedent's intention to disinherit his only child who was then in being.

The statute reads as follows:

"If any person make his last will and die leaving a child or children or descendants of such child or children not named or provided for in such will, although born after the making of such will or the death of the testator, every such testator, as to such child or children not named or provided for, shall be deemed to die intestate . . ." Rem. Comp. Stat., § 1402.

The weight of authority is to the effect, and we at an early date adopted the rule (In re Barker's Estate, 5 Wn. 390,31 P. 976) from which we have not departed, that a will leaving all the property of the testator or testatrix to the surviving spouse, to the exclusion of every one else who might be entitled to it, was insufficient to show an intention to exclude the children of the testator or testatrix. To the same effect isPurdy v. Davis, 13 Wn. 164, 42 P. 520.

"Whether a gift of all of testator's property to some one other than his children, usually to the surviving spouse, is sufficient to show an intention to exclude testator's children is a question upon which there is a conflict of authority. The weight of authority is to the effect that such devise does not show an intention to omit testator's children; but some courts hold that such a devise shows an intention to omit testator's children; as it can not take effect unless such children are excluded. As the statute is intended to protect the interests of the omitted children unless it appears clearly that testator had in mind the existence of such children when he made his will, the minority view would seem to be in violation of the meaning of the statute, and, quite possibly, of its express terms." Page on Wills (2nd ed.), § 492, p. 804.

I am of the view that Gehlen v. Gehlen, 77 Wn. 17,137 P. 312, lends no support to the majority opinion, and that other cases cited by the majority are not applicable. Gehlen v. Gehlen, supra, is distinguishable on the facts from the case at bar. We there held that a testator could, by naming them as a class, disinherit his children; that the statute did not require that the children be named specifically by each of their individual names or by terms of individual identification. In the will involved in the Gehlen case, the children were named as a class. That will, so far as pertinent, reads as follows:

"I make no provision for my children after my death, or any child which may hereafter be born, knowing that my said wife, who is their mother, will deal justly by them."

There the children were clearly designated as a class. We did not there hold, nor have we ever held, that a testator could disinherit his children by reciting in his will that he made no provision for any one other than a person named, knowing that such person would deal justly by every one, or that any one contesting the will or attempting to establish that he or she was entitled to any part of the estate or to any right as an heir to the testator, would be given a nominal sum or disinherited. To so hold would be to set aside the statute providing that, if a person in his or her last will fail to name or provide in such will for his or her children, "such testator, as to such child or children not named or provided for, shall be deemed to die intestate."

Instead of lending support to the majority opinion, Gehlen v.Gehlen, supra, sustains the position of respondent. In that case, we said, in reviewing the case of Purdy v. Davis,13 Wn. 164, 42 P. 520:

"An examination of the decision in Purdy v. Davis, also, shows that the language quoted was unnecessarily broad as applied to the language of the will there under consideration. In that case, the testatrix devised and bequeathed all of her property to her husband, subject to the following proviso:

"`If the said Percival A. Purdy (appellant) should marry again after my demise all my property, both real and personal, is to belong to any one or more children that may be born to me before my demise.'

"It is manifest that this proviso makes no mention of children by name, nor of children as a class, but the class mentioned wasonly future-born children, which would not include the childalready born, who, as there held, was not disinherited by thelanguage used. That holding was, in any view of the statute, clearly correct, since that child was not mentioned either byname or by inclusion in any class." (Italics ours.)

So, too, in the case at bar, the child was not mentioned either by name or by inclusion in any class.

In view of the provision of the statute (Rem. Comp. Stat., § 1402), a mere general reference that,

"In the event any person shall contest this will or attempt to establish that he or she is entitled to any portion of my estate or to any right as an heir,"

is not a sufficient compliance with the statute to prevent a testator from dying intestate "as to such child or children not named or provided for."