In Re Larson's Estate

364 P.2d 494, 58 Wash. 2d 673
CourtWashington Supreme Court
DecidedSeptember 7, 1961
Docket35472
StatusPublished
Cited by1 cases

This text of 364 P.2d 494 (In Re Larson's Estate) 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 Larson's Estate, 364 P.2d 494, 58 Wash. 2d 673 (Wash. 1961).

Opinion

58 Wn.2d 673 (1961)
364 P.2d 494

In the Matter of the Estate of ROSE B. LARSON, Deceased.
SHIRLEY DARYL PARKER, Appellant,
v.
JAY WHITFIELD et al., Respondents.[*]

No. 35472.

The Supreme Court of Washington, Department Two.

September 7, 1961.

Halverson, Applegate & McDonald, and Walter E. Weeks, Jr., for appellant.

Holman, Mickelwait, Marion, Black & Perkins, J. Paul Coie, and David E. Wagoner, for respondents.

DONWORTH, J.

This is an appeal from a decree construing certain provisions of a testamentary trust created in paragraph eighth of the will of Rose B. Larson, a resident of Yakima county, who died January 20, 1945.

On April 7, 1959, appellant, Shirley Daryl Parker, the grandson of the testatrix and the sole beneficiary of the trust, filed a petition for a construction of several provisions of the trust. The cotrustees at that time were Jay Whitfield and The Pacific National Bank of Seattle. They filed an answer and cross petition, to which appellant replied.

After a hearing, the trial court handed down a memorandum opinion, and later entered a decree construing Mrs. Larson's will as to the meaning of certain trust provisions, concerning which the parties differed. These legal issues and the trial court's decision with respect thereto will be discussed separately later in this opinion.

The appellant beneficiary has appealed, assigning error to two provisions of the decree, and the respondent trustees have cross-appealed, contending that the decree was erroneous in three other particulars.

The factual background of this controversy is not in dispute and may be briefly summarized as follows:

*675 In 1941, when Mrs. Larson made her will, she was the owner of valuable real property in Yakima (including the Miller Building) and owned a very substantial amount of marketable securities. Her living descendants were her son by a prior marriage, Shirley D. Parker, and his four-year-old son, Daryl, who is presently the sole beneficiary of the trust created by the will. Mrs. Larson was then seventy-one years of age.

In her will, she nominated her son as sole executor, and also as a beneficiary and cotrustee (with the bank) of the trust. After Mrs. Larson's death, her will was admitted to probate and the estate was administered by her son as executor. As of December 31, 1947, the corpus of the trust was delivered to her son and the bank as cotrustees. Her son died November 29, 1950, and shortly thereafter Jay Whitfield succeeded him as cotrustee (with the bank), as provided in the will. Since 1950, they have been, and still are, the duly qualified and acting trustees of the trust, and are respondents and cross-appellants on this appeal.

The trust provisions are set forth in paragraph eighth of Mrs. Larson's will. The purpose of the trust is stated in subparagraph (5) thereof:

"(5) The beneficiaries of this trust estate shall be my said son, Shirley D. Parker, his son, Shirley Daryl Parker; and any child or children born to my son after the execution of this will. All the net income from the trust estate, after said estate is distributed to said trustees, shall be distributed quarterly to my said son as long as he shall live."

After giving the bank sole discretionary power to distribute portions of the corpus to her son, from time to time, if needed for his support and that of his family, the testatrix provided in section (6):

"(6) Upon the death of my said son, or in the event he shall predecease me, then upon my demise, the balance of all the trust estate, whichever may be the case, shall be held in trust for my grandson, Shirley Daryl Parker, born September 16, 1937, and any other issue of my son born subsequent to the execution of this will, upon the following terms and conditions: ..."

*676 The "terms and conditions" directed that the trust estate should be apportioned into undivided shares for each of her grandchildren.

Each grandson was to receive quarterly the net income from his share until he attained the age of thirty years, when one half of the then principal of his share was to be distributed to him. As to the remaining one half of the then principal, the trust was to continue in effect until he attained the age of thirty-five, when all the remainder of his share of the corpus was to be distributed to him and the trust would terminate as to him. The trustees were given absolute discretion to pay portions of a grandson's share of the corpus to him at any time before distribution if they decided he would otherwise be deprived of reasonable necessities and comforts of life.

Each granddaughter was to receive the income from her share quarterly for the term of her natural life. The only way she could receive or use any of the corpus was if the trustees in their absolute discretion deemed it necessary for her education, care, comfort and maintenance. She was given a power of appointment to direct in her will how any remaining part of her share of the corpus should be distributed upon her death.

Appellant attained his majority on September 16, 1958. The net income of the trust was, and still is, approximately $3,500 per month. During his minority, the trustees had withheld and accumulated, for his benefit, from the net income approximately $150,000 in excess of the amounts applied to appellant's use. Prior to instituting this proceeding, appellant made demand upon the trustees for these accumulations, which was refused. One of the questions before us on this appeal is: When is appellant entitled to receive these accumulations under the terms of Mrs. Larson's will?

Since appellant has become of age, the trustees have been paying him from the net income the sum of $2,000 per month. Their right to pay him less than the entire net income from and after his attaining his majority until *677 the termination of the trust presents another question of interpretation of the trust instrument.

Appellant's first assignment of error requires an interpretation of paragraph eighth of Mrs. Larson's will, and particularly section (3) (e) and section (7) thereof, which read as follows:

"(e) The Trustees may make payments of any income or principal applicable to the use of any minor beneficiary, as hereafter more specifically set forth, by making such payments either to the parent or guardian of the person of such minor or directly to such minor, or may apply the same for his or her benefit, and all such payments shall be a full discharge to the trustees therefor.[[1]] All unexpended income apportionable to any minor beneficiary hereunder shall, unless otherwise provided herein, be accumulated for the benefit of and during the minority of such beneficiary and paid to him or her upon and if attaining majority.

"...

"(7) Said trustees may in their discretion withhold or reduce payments of income to any grandchild beneficiary hereunder either during or after his or her minority in the event said trustees determine that the payment of all of the income of any beneficiary's share to him would be improvident or would be unnecessary to provide for his proper education, care and maintenance. Any income so withheld shall be reinvested and accumulated and shall subsequently be paid to said beneficiary at the time the trust as to his share terminates."

It is appellant's position that the testatrix' primary intention is shown by her direction stated in the following provision in section (6):

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Related

In Re Drown's Estate
372 P.2d 196 (Washington Supreme Court, 1962)

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Bluebook (online)
364 P.2d 494, 58 Wash. 2d 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-larsons-estate-wash-1961.