In Re Estate of Torando

228 P.2d 142, 38 Wash. 2d 642, 1951 Wash. LEXIS 469
CourtWashington Supreme Court
DecidedMay 15, 1951
Docket31588
StatusPublished
Cited by22 cases

This text of 228 P.2d 142 (In Re Estate of Torando) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Estate of Torando, 228 P.2d 142, 38 Wash. 2d 642, 1951 Wash. LEXIS 469 (Wash. 1951).

Opinions

Robinson, J.

When Barbara Ruth Torando died in Alaska in January, 1950, she left a will, reading, in part, as follows:

“Third: I give to my good friend, Rebecca Parrish, of Anchorage, Alaska, all the real property owned by me at the time of my death that is situate in the City of Seward, Alaska, and in addition to this devise, I give and bequeath to her all the household goods, furniture and personal property excepting my personal effects, clothing, jewelry and money.
“Fourth: To my sister, Anna Moore, of Seattle, Washington, I give and bequeath all the personal effects, clothing and jewelry of which I may die possessed, whether the same be at my home in Seward, Alaska, or elsewhere, at the time of my death. ...
“Sixth: After the payment of the aforesaid specific devises and bequests, and after the payment of all my debts, expenses of administration and the discharge of all other costs and fees incurred in the administration of my estate, I direct that my executrix sell or cause all my other property to be sold and converted into money, and the same divided into three equal parts and paid to the following three persons: (a) one share thereof to my sister, Anna Moore, of Seattle, Washington; (b) one share thereof to my sister, Mary Cartwright, of Chicago, Illinois; and (c) one share thereof to my sister, Molly London, of Chicago, Illinois. The provision that I have hereinabove made for my sister, Anna Moore, shall be in addition to the bequest I have made to her by Paragraph 4 hereof; and, in the event one or two of my sisters predecease me, then the survivors, or survivor of them shall divide the share of such deceased sister between them, or take the entire residue, as the case may be.”

[644]*644As the third paragraph of the will suggests, Barbara Ruth Torando owned a house in Seward; and had she owned no household goods, furniture, and personal property other than what was contained therein, this will would have presented no problem. However, she also owned a home in Seattle, and died possessed of a considerable amount of household goods, furniture, and personal property located in that city. The Seattle house was devised, without special mention, by the sixth paragraph of the will. The controversy in this case arises over the question of who is entitled to the household goods, furniture, and personal property in Seattle. Respondent, Rebecca Parrish, contends that these were bequeathed to her in the third paragraph of the will. Appellants, testatrix’ sisters, assert that the household goods, furniture, and personal property mentioned in that paragraph, are only those’ in the Seward house, and that it was the intent of the testatrix that the Seattle personalty should pass to them with her Seattle home, under the all-inclusive terms of the sixth paragraph.

Now, it is, of course, our purpose to ascertain the intent of the testatrix; but it is axiomatic that this intent must be gathered, if possible, from the words actually used in the will. Shufeldt v. Shufeldt, 130 Wash. 253, 227 Pac. 6. When this will is examined without resort to extrinsic evidence, it appears probable that appellants’ contention is correct. Their suggested interpretation is in harmony with ordinary notions of syntax; for the first part of the sentence, of which the third paragraph is composed, deals with certain real property, and it is logical to suppose that the second part is concerned with the household goods located on that property. In the absence of any explanatory phrase, it gives the will a somewhat strained construction to assume that this clause was intended to refer, not only to the household goods in Seward, but to those in Seattle as well; and this is particularly true in view of the fact that the Seattle house was devised separately by virtue of the broad language of the sixth paragraph.

Also worthy of consideration is the language of paragraph four. Here, the testatrix disposed of all her personal effects, [645]*645clothing, and jewelry, “whether the same be at my home in Seward, Alaska, or elsewhere.” There was no real necessity for this qualifying clause. It could have easily been left out of the fourth paragraph, and there would have been no doubt of the testatrix’ intention. Yet if, by the third paragraph, she intended to leave Rebecca Parrish all of her household goods, furniture, and personal property, where-ever located, a similar qualifying clause was required in that paragraph to make her meaning clear; for it begins with a reference to her Seward house alone. But no such clause appears in the third paragraph. The inference would seem to be that that is not there because, by that paragraph, testatrix intended to dispose of her household goods in Seward, and no more.

Nevertheless, the trial court, upon consideration of the will, reached a result opposed to this, and held that the third paragraph disclosed an unequivocal intent to leave all of testatrix’ household goods, furniture, and personal property, whether in Seward or Seattle, to Rebecca Parrish. Though our examination of the will does not lead us to the same conclusion, it cannot be denied that the language employed is open to such interpretation. Consequently, since the will admits of two constructions, it may properly be termed ambiguous; for, “ambiguous” simply means capable of being understood in more senses than one. Ayres v. Harleysville Mut Cas. Co., 172 Va. 383, 2 S. E. (2d) 303.

Now, although, as a general principle, the court, in construing a will, must confine its endeavors to ascertaining the intent of the testator, as expressed within the four corners of the document, there exists an established exception to this. When, upon a reading of the will in its entirety, any uncertainty arises as to the testator’s true intention, it is well accepted that extrinsic facts and circumstances may be admitted for the purpose of explaining the language of the will. Peters v. Briska, 191 S. W. (2d) 993; In re Bauer’s Estate, 5 Wn. (2d) 165, 105 P. (2d) 11. Thus, where there is ambiguity as to the identity of the property devised or bequeathed, testimony of the scrivener may be admitted to [646]*646assist in resolving the problem. In re Morrison’s Will, 60 N. Y. S. (2d) 18; see 94 A. L. R. 26, 286, and cases there cited.

At the outset, the trial court was apparently of the opinion that this rule applied in the present case, for it directed that a commission issue to take the deposition of the Alaska attorney who drew the will. After hearing argument, however, it declined respondent’s offer of the deposition in evi-' dence, on the ground that there was no ambiguity in the will, and that, irrespective of the deposition, respondent’s contention, that it was the intent of the testatrix to leave all of her household goods, furniture, and personal property to her, was the correct one. But, since we have concluded that the will is ambiguous, ánd since we are considering the whole matter de novo, it is incumbent upon us to examine the deposition and determine whether it should be regarded as having any effect upon our views as to the probable intent of the testatrix, which we have arrived at from a consideration of the .will itself.

We find, upon doing so, that it was the unequivocal opinion of the scrivener that Barbara Ruth Torando intended to leave the household goods, furniture, and personal property in Seattle to Rebecca Parrish.

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In Re Estate of Torando
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Bluebook (online)
228 P.2d 142, 38 Wash. 2d 642, 1951 Wash. LEXIS 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-estate-of-torando-wash-1951.