Cowles v. Matthews , 197 Wash. 652 ( 1939 )

I find myself unable to subscribe to the majority opinion. By the terms of his father's will, the appellant succeeds to a one-third interest in a comparatively large estate. The respondent holds an unsatisfied judgment against the appellant and seeks, by supplementary proceedings, to subject this interest to payment of the appellant's debt.

We have held, in Washington Trust Co. v. Blalock, 155 Wash. 510,285 P. 449, that the interest of a judgment debtor in an estate may be subjected to the payment of his debts, subject, of course, to the rights of creditors and the orderly processes of administration. But it is contended by the appellant that, by the terms of his father's will, the estate is to be held in trust for five years; and that, under the provisions of Rem. Rev. Stat., § 637, quoted in the majority opinion, his interest in the trust estate is exempt from execution.

It will be noted that, by the terms of the will, there is an outright bequest of a third interest in the estate to each of the testator's three sons. Then follows the testator's statement that it is his "will and desire" that the sons allow the property of which he may die seized to remain in its present condition and be held in trust for a period of five years. I think the direction to the sons amounts to no more than the recommendation by a father to his children of a course of policy in the management of their inheritance. There is no trust within the intent of § 637.

I therefore dissent.

STEINERT, C.J., BLAKE, and HOLCOMB, JJ., concur with GERAGHTY, J.