there can be no other. The trustees are required not only to divide, but also to distribute, the property. This depends for fulfillment, not upon some death other than that of the testator, certain enough as to event though uncertain as to date, but upon the time appointed by the will. It is said by appellants' counsel that death alone is no contingency, and that, if the first taker lives beyond the testator, he takes an absolute estate; but, if the death of the taker is coupled with any other contingency, such object of the testator was to keep her from inheriting directly from him by virtue of being the widow of his son. The strong desire of the decedent, several times expressed in the will, was to direct his property into the hands of his descendants, not in any unusual proportions, but as the law would otherwise distribute it among those of his blood. The mere incident of possible dower, which is not an estate inherited from any one, would not change the ultimate destination of his property, viz., the enjoyment of it by the issue of his loins. The words "in-death means his decease at any time, whethdependent of his wife at all times" may be set down as a negligible factor or as precatory words. They affect nothing. They are as well applicable to a life estate in Green C. Love as to any other that might be cast upon him. Her inheritance would be defeated, not by these words, but by the existence of descendants of her husband living at the time of his death. The objection that she could incumber her husband's fee-simple estate by incurring expenses for the sup-lishes for the contingency of his dying withport of the family applies equally well to his supposed life estate, and, besides this, such expenses would be his own liability for which any estate he had in the land would be holden. L. O. L. § 7039. He could also convey to her his life estate as well as his fee-simple estate. The problem, then, is to work out a solution of the uncertainty annexed to the certainty of the death of Green C. Love by thẻ words, "lawful issue born alive and living at the time of his death." The context is not silent here, but will aid in solving the problem. The will in question is something more than a mere direction of how the estate shall be distributed, leaving that to be effected as to time automatically, so to speak, by the operations of the probate court. The instrument goes further and creates a trust, appoints trustees, passes the estate to them, and fixes a time certain when their stewardship shall be terminated. To "pass" means, in this connection, to devise. Gant v. Henly, 64 Mo. 162; Young v. Boardman, 97 Mo. 181, 185, 10 S. W. 48; Joyslin's Estate, 76 Vt. 88, 56 Atl. 281. If this same word "pass" were used alone in a will made directly in favor of any one, it would operate the same as if the word "devise" itself were employed. The estate being devised to the trustees, the cestuis que trustent take, not immediately from the testator, but from the trustees, and must be bound by the terms of the trust, one of which is that it must be wound up and final distribution made January 1, 1907. It says: "I direct that my trustees make final distribution of my estate on January 1, 1907." It was not the intention of the testator to prolong the matter indefinitely. Attention must be given to the word "final." It means a termination and signifies the last beyond which er before or after that of the testator. In this case, however, the intervention of the trust estate and the requirement that it come to an end January 1, 1907, operate to fix the time of distribution, making the word "then" in the third clause of the codicil correspond to that date and designating the then living Green C. Love as the devisee rather than the "remaining devisees." The date appointed for final distribution estab out issue a boundary beyond which it can have no effect. The testator, through his trustees, disposed of all his property to named devisees without prescribing that, in case of the death of either, the descendants of such a one should take that share by right of representation. On the contrary, he says that, if Green C. Love die without issue, his share shall pass to the remaining | devisees—that is, to those devisees then surviving-not per capita, but in proportion as they hold the shares he has designated. Final distribution requires that the estate distributed be certain and not contingent, and that nothing be left for ascertainment. If Green C. Love took only a life estate, the trust was not ripe for final settlement while he lived, for until he died it could not be known who of the devisees remained or survived. Holding only a life estate, if he dies without issue, the trust will have to be reopened and another distribution made among the remaining devisees, whoever they may be. But the date, January 1, 1907, named in the will, puts an end to the process of devolution marked out for his estate by the testator. When that day came, uncertainty vanished. Final distribution was no longer hindered or impeded by the uncertain tenure of Green C. Love's life or want of knowledge of the number and existence of the remaining devisees. The trustees were then bound to distribute finally, once for all, and to whom? The only answer is: To those at that time qualified under the will. If Green C. Love's fee-simple estate declared by the original will was not defeated by his death without issue prior to January 1, 1907; if, on the contrary, he was alive at that timehe was that qualified devisee for one of the six shares to whom the trustees must make final distribution rather than to his alter nates, "the remaining devisees of my said | turb the absolute estate to which it was will." To hold otherwise would be to keep annexed. At best the case falls within the open indefinitely a trust which the testator di- principle that, where an absolute fee is once rected should be closed at a time certain. He clearly devised, it cannot be afterward limdid not leave it to the halting pace of litiga-ited or taken away except by equally explicit tion or the slow march of chancery, but, as he language. It is true we must have regard had the right to do, prescribed a time when to the intention of the testator, but it must operations under the will should cease and be ascertained by a judicial examination of his property should be finally distributed what he has written. Under any view of among the ultimate holders. The will itself the case most favorable to the defendants, provides for its own consummation. His di- the obscurity of language in the third clause rections in that respect are as authoritative of the codicil is in such strong contrast to as any in that document and should be obey- the clear diction of the original will confered. The parties adopted this construction of ring on the plaintiff "the highest estate a the will by participation in the distribution man hath in lands" that for this reason, if which the trustees made as stated in the for no other, the decree of the circuit court pleadings, and they should not now be heard should be affirmed. 1 Redfield on Wills, c. to question it. They gave practical effect to 9, 30; Holt v. Wilson, 82 Kan. 268, 108 all the terms of the will so that the prop- Pac. 87; McNutt v. McComb, 61 Kan. 25, 58 erty became capable of present use and en- Pac. 965; Lonmuller v. Mosher, 74 Kan. 751, joyment. This result should not now be 87 Pac. 1140; Byrnes v. Stilwell, 103 N. Y. overturned, for the law does not presume or 453, 9 N. E. 241, 57 Am. Rep. 760; Wasbon favor restraints upon alienation. v. Cope, 144 N. Y. 287, 39 N. E. 388; Fowler v. Duhume, 143 Ind. 248, 42 N. E. 623; Lambe v. Drayton, 182 Ill. 110, 55 N. E. 189; Meyer v. Weiler, 121 Iowa, 51, 95 N. W. 254; Brewster v. Douglas (Iowa) 80 N. W. 304; Roth v. Rauchenbusch, 173 Mo. 582, 73 S. W. 664, 61 L. R. A. 455; Spencer v. Scovel, 70 Neb. 87, 96 N. W. 1016; McClellan v. Mackenzie, 126 Fed. 701, 61 C. C. A. 619; Yocum v. Parker (C. C.) 130 Fed. 722. In brief, the will gave Green C. Love, a feesimple estate. The codicil did not supersede it but only appended the contingency of his death without then living issue. The contingency itself was limited by the appointment of January 1, 1907, as the date of final distribution. The fortuitous event did not occur within the period prescribed for its potency and cannot now or ever dis (63 Wash. 318) CONVERSE v. MIX et al. (Supreme Court of Washington. May 5, 1911.) 1. WILLS (8 155*) – UNDUE INFLUENCE-INFLUENCE ARISING FROM ACTS OF KIND NESS. The influence a son gains over his mother by uniformly courteous and kind conduct, even though it may partially exclude other children in her disposition of her effects, is not in law undue influence. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 380; Dec. Dig. § 155.*] 2. WILLS (§ 55*) – TESTAMENTARY CAPACITY -EVIDENCE-SUFFICIENCY. In an action to set aside a will for lack of testamentary capacity, evidence held show that the testator had sufficient mental to capacity to make a will. [Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 137-161; Dec. Dig. § 55.*] Department 1. Appeal from Superior Court, Walla Walla County; Thos. H. Brents, Judge. Action by Mrs. O. I. Converse against W. A. Mix and another to revoke the probate of a will. From a judgment revoking the probate of the will, defendants appeal. versed and remanded, with directions. T. P. & C. C. Gose, for appellants. Dunphy, Evans & Garrecht and Sharpstein & Sharpstein, for respondent. by the undue influence of her sons, and es- [1] The ground on which the trial court rested its judgment finds little, if any, support in the evidence. While it is true that the testatrix was aged, and was during her later years afflicted with an incurable disease, diabetes, and needed the constant care of some one, and that her sons saw that is nothing to show that there was anything she was provided with such care, yet there other than natural affection that induced her to make her will in their behalf. On the other hand, there are abundant reasons shown why she might not have the same regard for her daughter. The daughter married an army officer in 1866. From that time up until the time of her mother's death she visited with her mother but five different times; and these visits were of but short Re-duration, usually ending in some violent discord, which left them both in a very unhappy frame of mind. The last of these visits was made some four years before the mother's death. At the solicitation of her brothers the sister came to her mother's PER CURIAM. On January 24, 1909, home at Walla Walla for the purpose of Anna McC. Mix died in the county of Walla caring for her during her declining years. Walla, state of Washington, leaving estate She had been in the house but a few days therein consisting of real and personal prop- until she began agitating taking proceedings erty, and leaving as her sole heirs at law to have her mother placed in a sanitarium two sons and a daughter, each of whom and a guardian appointed over her propwas then over the age of majority. She left erty. When information of this reached the a will naming her sons and her daughter mother, the usual ruction took place. as legatees and devisees thereof, devising daughter left the house for her own home, her real property to them in unequal shares, and let the duty of looking to the mother's giving one of the sons the more valuable comfort fall again upon the sons. One of portion, and naming both of her sons these sons had been her favorite from his executors thereof. After the will had been babyhood. His conduct towards her during admitted to probate, the daughter began his whole life seems to have been uniformly proceedings to revoke the probate of the courteous and kind. While she had troubles will, and to have the same adjudged to be at different times with her other son, and not the last will and testament of the de- with her daughter whenever they met, her ceased, setting forth in her petition as relations with this son were always harmongrounds therefor, first, that at the time of ious, and of a character unusually affectionthe purported execution of the will the tes- ate even for mother and son. It is not tatrix was incapable by reason of mental surprising nor unnatural, therefore, that she and physical infirmities of executing a will; should make him the object of her greatest and, second, that at the time of the purport- bounty; and, while her affection for this ed execution of the will the testatrix was son may have influenced her to remember acting under the undue influence of her sons, him in her will to the partial exclusion of and particularly the younger son to whom her other son and her daughter, it is not she purported to devise the major portion that charàcter of influence that is classed of her real property. A hearing was had by the law as undue influence, or that charon the allegations of the petition, which re- acter of influence that authorizes the courts sulted in a finding by the trial court that to vacate and hold for naught last wills the "deceased was induced to make, exe- and testaments. In the language of the Sucute, and sign said instrument as and for preme Court of Kansas in Ginter v. Ginter, her last will and testament, and to declare 79 Kan. 721, 101 Pac. 634, 22 L. R. A. (N. the same to be such last will and testament S.) 1024: "To vitiate a will, there must For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 115 P.-20 as The to the refinement of" her home. Her manner of dress, the evidence shows, was some. what peculiar, and no doubt did cause her neighbors to avoid her socially, and did keep them from inviting her into their homes, and these facts no doubt led her to think she was being persecuted by them. But these complaints were made in the earlier part of her life, and can hardly be said to have much bearing on her sanity at the time the will was executed. Her ec be more than influence. It must be undue influence. To be classed as undue, influence must place the testator in the attitude of saying, 'It is not my will, but I must do it.' He must act under such coercion, compulsion, or constraint that his own free agency is destroyed. The will, or the provision assailed, does not truly proceed from him. He becomes the tutored instrument of a dominating mind which dictates to him what he shall do, compels him to adopt its will instead of exercising his own, and by over-centricities followed her throughout her life, coming his power of resistance impels him but nevertheless seem not to have interfered to do what he would not have done had he with her business ability and judgment, been free from its control. A testator's Left a widow in the middle period of her favor expressed in a will may be won by life with an inconsiderable property and a devoted attachment, self-sacrificing kindness, considerable debt, she succeeded in the space and the beneficent ministrations of friend- of perhaps a quarter of a century in not ship and love. These influences are not un- only paying off the debt, but in amassing a due. We expect partiality to attend them. considerable fortune in income-bearing real They bring preferment as their natural re-estate, and this notwithstanding her eccenward, and they do not become unrighteous, tricities. Since her eccentricities did not although they establish a general ascendancy interfere with her accumulation of the propover the testator leading him to find com- erty, we do not feel that they should infort and pleasure in gratifying the wishes capacitate her to will it away. Nor did and desires of the person exercising them. her mental faculties fail until the last. For Other less worthy influences may make a considerable period after the execution of equally strong appeals, and may result in the will in question here, and indeed, up the same general dominion, and still be until a short period prior to her death, she sufferable in contemplation of the law. In- kept her business matters within her own fluences to induce testamentary disposition hands, supervising the action of her agent may be specific and direct without becoming in renting her properties and collecting the undue. It is not improper to advise, to per- rents therefrom, and keeping charge of her suade, to solicit, to importune, to entreat, household expenses, not even permitting her and to implore. Hopes and fears and even sons to supervise the latter. prejudices may be moved. Appeals may But, without pursuing the question furbe made to vanity and to pride; to the sense ther, the judgment and order appealed from of justice and to the obligations of duty; will be reversed, and the cause remanded to ties of friendship, of affection, and of to reinstate the will and proceed with the kindred; to the sentiment of gratitude; to administration of the estate in accordance pity for distress and destitution. It is not therewith. enough that the testator's convictions be brought into harmony with that of another et al. (63 Wash. 264) (Supreme Court of Washington. April 22, 1911.) by such means. His views may be radical- NATIONAL GROCERY CO. v. SIMMONS ly changed, but so long as he is not overborne and rendered incapable of acting finally upon his own motives, so long as he remains a free agent, his choice of a course is his own choice, and the will is his will and not that of another." 1. PARTNERSHIP (§ 56*) - HOLDING OUT AS PARTNER-EVIDENCE. Evidence held to support a finding that defendant represented to plaintiff that he was a partner in a mercantile firm composed of himself and codefendant, and that plaintiff at the request of defendant and codefendant sold goods to the firm in reliance on the representation, authorizing a separate judgment against defend ant and codefendant. [Ed. Note. For other cases, see Partnership, Cent. Dig. § 80; Dec. Dig. § 56.*] 2. COSTS (§ 233*)-COSTS ON APPEAL. [2] The contestant's learned counsel, however, in their argument before this court, attempt to support the judgment of the court below on the ground of mental incapacity in the testatrix rather than upon the ground on which it was rested by the trial judge. But we think the evidence equally fails to support this theory. It is true it is made clear that the testatrix was in many ways eccentric, particularly in the matter of dress. It was shown also that at one time she was an ardent woman suffragist, and persuaded herself that she was being persecuted by the people of the city in which she lived because thereof and because of her dress, her "music, and all that pertained A plaintiff who takes an excessive judgment is liable to defendant for the costs on appeal to the Supreme Court affirming the judgment with permission to defendant to apply to the trial court for a reduction of the judgment. [Ed. Note. For other cases, see Costs, Dec. Dig. § 233.*] Department 2. Appeal from Superior Court, King County; Mitchell Gilliam, Judge. Action by the National Grocery Company | dence convinces us that the findings as to against D. W. Simmons and others. From representations made by him must be sus a judgment for plaintiff, defendant named appeals. Affirmed, with permission to apply to the trial court for a reduction of the amount due at the time of the entry of the judgment. Murphy & Winders and C. H. Winders, for appellant. Ira Bronson, for respondent. PER CURIAM. This action was menced by the National Grocery Company, a corporation, against Richard Irvine, R. G. Leslie, and D. W. Simmons, copartners as Irvine, Leslie & Co., and Nellie E. Simmons, wife of D. W. Simmons, to recover for merchandise sold. From a judgment in plaintiff's favor, the defendant D. W. Simmons has appealed. tained, and that no findings more favorable to appellant could have been made. We will not enter upon a discussion of the conflicting evidence, as no good purpose would be thereby served. It is not disputed that a partnership did at one time exist of which appellant was a member, that he invested money therein, that no formal dissolution was ever com-announced, and that he signed a written instrument by which he agreed to give his personal services to the firm from June 1, 1906, to October 1, 1906, or employ a man to take his place. Appellant admits his signature to this document, but fails to explain how he came to execute it. It is also conceded that appellant on October 16, 1906, signed the firm name to its promissory note to an Alaska bank for $7,000 to secure funds for the payment of firm obligations, and that he later indorsed a $10,000 note to respondent for a partnership debt. These and other circumstances considered, with oral evidence of witnesses produced by respondent, are sufficient to sustain the findings made, which, in turn, support a judgment in respondent's favor. The issue tried was whether D. W. Simmons was a member of the alleged copart nership or had held himself out to the respondent as such, and whether any judgment obtained against him was the community debt of himself and wife. The trial judge found that for a long time prior to May 24, 1907, D. W. Simmons held himself out to the respondent as a partner of Richard Irvine in the mercantile business of Irvine, Leslie & Co. in Alaska, and that he continued such representation until September 13, 1907; that respondent at the special instance and request of appellant and Richard Irvine sold goods to Irvine, Leslie & Co. of the value of $10,347.07, upon which they paid $1,948.80, leaving $8,398.27 unpaid; that respondent in selling the goods relied solely and wholly upon appellant's representations; and that at no time did D. W. Simmons announce to respondent his withdrawal from such partnership relation. Upon these findings, a separate judgment for $8,398.27, interest and costs, was entered against Richard Irvine and D. W. Simmons. No community judgment was entered against Nellie E. Simmons. [1] The appellant contends the trial court erred in the findings made. Although respondent alleged appellant was a member of the firm of Irvine, Leslie & Co., no finding was made that he was a partner when respondent sold the goods. Appellant contends the court impliedly found he was not a partner, and argues that, if he is liable at all, it can only be on the theory of estoppel, but that the evidence shows no liability on that ground. He concedes that during the year 1903 he was a member of the firm of Irvine, Leslie & Co., but insists that he withdrew before respondent sold it any merchandise, that he has not been a member since, and that, he at no time since represented himself as one of the firm. It is immaterial for the purposes of this appeal whether appellant was a partner after the year 1903, or whether the trial court so found, as a careful examination of the evi [2] The trial judge announced his opinion some time after the hearing. In the meantime further payments were made upon the respondent's claim from partnership assets. Appellant now calls attention to the fact that the final judgment was in excess of the amount due at the date of its entry. Respondent admits this error, and expresses its willingness to correct the same. The judgment will be affirmed; but with permission to appellant to apply to the trial court for an order reducing it to the amount actually due at the date of its entry. Because of the error of respondent in taking an excessive judgment, the appellant will recover costs on this appeal. (63 Wash. 312) STATE ex rel. BIDDLE v. SUPERIOR COURT OF KING COUNTY. (Supreme Court of Washington. May 2, 1911.) 1. MORTGAGES (§ 380*) - FORECLOSURE -NATURE OF PROCEEDING. A mortgage foreclosure suit is a proceeding in rem, and the rights of the mortgagor and those claiming under him may be adjudicated therein. [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 380.*] 2. MORTGAGES (§ 437*)- FORECLOSURE-PAR TIES. real estate may be brought in as an additional One asserting an interest in mortgaged party, either before decree of foreclosure or thereafter on an order to show cause why the decree should not foreclose his asserted right, and, in either case, his right may be fully adjudicated. [Ed. Note. For other cases, see Mortgages, Dec. Dig. § 437.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes. |