Kjosness v. Lende

389 P.2d 280, 63 Wash. 2d 803, 1964 Wash. LEXIS 547
CourtWashington Supreme Court
DecidedFebruary 13, 1964
DocketNo. 36508
StatusPublished
Cited by3 cases

This text of 389 P.2d 280 (Kjosness v. Lende) 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
Kjosness v. Lende, 389 P.2d 280, 63 Wash. 2d 803, 1964 Wash. LEXIS 547 (Wash. 1964).

Opinion

Hamilton, J.

This is an appeal from a judgment closing and distributing the corpus of a testamentary trust.

On May 20, 1926, Gunder P. Kjosness executed his last will and testament. On March 30, 1927, he died in Asotin County, Washington. He left surviving his wife Nikoline Fredrikke and nine children, Hannah, Martha, Ingram, Gustav, Albert, Amalie, Yalborg, Gunder, and Nikoline. The approximate ages of the survivors at the time he executed his will, were 62,47,45,42, 38, 36, 34, 32, 30, and 23, respectively. At the time of his death, all of the children were married, except the youngest daughter Nikoline. All married children had children, except Hannah. His will was regularly admitted to probate in the Superior Court for Asotin County, and-, the designated corporate executor having declined to act, Gustav A. Kjosness, the second son, was appointed as administrator with the will annexed.

On October 7, 1931, the administrator’s final account and petition for distribution was approved by the court and a decree of distribution entered. By the terms of the decree and with the consent of the surviving wife, the household goods and effects were distributed to the surviving wife for her use during her lifetime. The residue of the estate, consisting of 2 shares of preferred and 752 shares of common stock of the Madison Lumber & Mill Company, a closed family corporation, was distributed into trust for the benefit and support of the surviving wife during her lifetime, thereafter to be divided, following payment of certain specific bequests, among the 9 children. Eight of the gifts over to the children were conditioned upon their respectively attaining the age of 45, and all were subject to a portion being retained in trust for the support of the youngest [805]*805daughter so long as she remained unmarried and incapable of self-support. Again, the designated corporate trustee having declined to act, Gustav A. Kjosness, with the consent of a majority of the heirs, was appointed as trustee.

In 1946, at the approximate age of 65, Martha, the second oldest daughter, died leaving surviving her a husband, Albert S. Ryland, and two daughters, Deka Gray and Betty Arme Carlson. Martha’s heirs have not joined in this appeal.

On December 27, 1953, Ingram, the first son, died at the approximate age of 69. Surviving Ingram are his wife, Eva Maud, now an incompetent, two daughters, Evelyn Cox and Kathryn Gwendolyn Hudson, and a grandchild, Ingrid Dickson, the daughter of a deceased son. By his will, Ingram devised his estate to his wife Eva Maud.

Nikoline Fredrikke, the widow and life beneficiary of the trust, died on December 22,1957, at the age of 93 years.

At the time of the widow’s death, there existed in the trust estate 855% shares of common stock of the Madison Lumber & Mill Company, the corporation having purchased the 2 shares of preferred stock in 1947 and issued to the trust estate a stock dividend of 110% shares in 1950. Seven shares of the trust estate stock, 5 in 1948 and 2 in 1950, had been transferred to Mrs. Florence Gunderson, a long-time secretary of the corporation, purportedly in lieu of cash for personal services rendered by her on behalf of the surviving wife.

Between 1931 and 1957, no corporate cash dividends were paid into the trust estate. Monthly cash advances were made to meet the needs of the surviving wife directly from the corporation and credited against declared dividends. A substantial deficit accrued. Since 1957, due to business reasons, no dividends have been declared or paid by the corporation.

In February, 1961, Gustav A. Kjosness, as trustee, instituted this action in the Superior Court of Spokane County, seeking approval of his stewardship of the trust, determination of heirship, and an order distributing the assets of [806]*806the trust. All living children of Gunder P. Kjosness and the survivors of the deceased children were joined as parties, except one, a son of Martha, who had disappeared prior to 1946. Appearing, answering, and being represented at the subsequent hearing were the daughters of Ingram, Evelyn Cox and Kathryn Gwendolyn Hudson, in their individual capacities; Kathryn Gwendolyn Hudson in her capacity as executrix of her father’s estate and as guardian of her mother’s estate; and the granddaughter, Ingrid Dickson.

The daughters requested an accounting by the trustee. In addition, they asserted that, under the terms of the will of Gunder P. Kjosness, Ingram’s share in the corpus of the trust vested in him, either upon the death of the testator or when he attained the age of 45, subject to the life estate of the widow; hence, upon the death of the widow, it became distributable to his estate. On the other hand, the granddaughter and the trustee, Gustav A. Kjosness, contended Ingram’s remainder interest was contingent upon his surviving the life beneficiary, and, according to the provisions of the will, became distributable to his children or their issue per stirpes.

At the conclusion of the hearing, at which only the trustee and Mrs. Florence Gunderson were called and testified, the trial court entered findings of fact, conclusions of law, and a decree approving the trustee’s stewardship and accounting of the trust estate, construing the provisions of the will in accordance with the contentions of the granddaughter and the trustee, and ordering division of the residue of the trust estate into 9 equal parts with distribution, one part each, to the 7 surviving children of the testator, and to the children of Martha and the children and granddaughter of Ingram per stirpes.

The daughters, in their individual and representative capacities, appeal.

Appellants first challenge the trial court’s construction of the provisions of the will of Gunder P. Kjosness and the order of distribution, insofar as such results in distribu[807]*807tion of Ingram’s 1/9 share of the corpus of the trust to his children and grandchild rather than to his estate.

The fundamental question raised by appellants’ first challenge is whether, under the provisions of the will, Ingram’s share in the corpus of the trust estate remaining at the time of the widow’s death was an indefeasibly vested interest, or one subject to a condition precedent of his survival of the widow or subject to complete defeasance by his nonsurvival of the widow. More precisely stated, does the will, by its provisions, expressly or by implication, erect as a condition precedent to the vesting of Ingram’s interest his survival of the life beneficiary, or if not, does the will create in Ingram a vested interest subject to complete defeasance by his nonsurvival of the life beneficiary?

As we stated in Shufeldt v. Shufeldt, 130 Wash. 253, 258, 227 Pac. 6, and have repeated since:

“It goes without saying that in this, as in every other case of construing a will, the supreme purpose is to ascertain the actual intent of the testator; and that should be ascertained, whenever possible, from the language of the will itself, unaided by extrinsic facts. Certain technical rules exist for the gathering of the intent of the testator from the will itself. . . .
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“The intention is to be gathered from the words used as covered by recognized rules, and in cases of doubt and ambiguity, from the situation and surrounding circumstances. [citing cases] ...”

Further, following the pattern of the Shufeldt case,

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Related

In Re the Estate of Smith
700 P.2d 1181 (Court of Appeals of Washington, 1985)
In Re Estate of Riemcke
497 P.2d 1319 (Washington Supreme Court, 1972)

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Bluebook (online)
389 P.2d 280, 63 Wash. 2d 803, 1964 Wash. LEXIS 547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kjosness-v-lende-wash-1964.