In Re Snodgrass' Estate

Askren, J.

— Flora C. Snodgrass died on November 25, 1922, leaving a will which was duly admitted to probate, under the terms of which she disposed of her estate and nominated the Spokane & Eastern Trust Company as executor thereof. Paragraph 3 of the will provided:

• “Third: In case my husband George W. Snodgrass, should meet with business reverses so that his income should be less than six hundred dollars a year, at any time during his life, I direct that he be paid one-third of the remainder of the net income from my said estate for the remainder of his life.”

On June 12, 1924, the surviving spouse, George W. Snodgrass, deeming himself entitled to receive under this paragraph of the will, made application to the executor for the portion of the income of the estate indicated by this section. The executor filed the application in the superior court and a hearing was had to determine the petitioner’s rights under the will. From an order denying him any relief, the surviving spoii.se has appealed.

The sole question is whether appellant is entitled to inherit under paragraph 3 of the will, and that must be determined by finding as a fact whether the condition precedent provided for therein had come into being. If so, appellant was entitled to the relief - demanded.

The hearing developed the following facts: Appellant and decedent had for many years lived in Kitti- tas county, and at the time, of decedent’s death, and for a long time prior thereto, the appellant was the owner of 480 acres of land therein, 160 acres of which were worth approximately $200 per acre, and 320 acres of which were worth approximately $25 per acre, together with a large quantity of farming machinery, $500 worth of hank stock, three cows, twenty-five head of horses; and, at the time of the hearing, appellant also had upon the property in question 4,800 bushels of wheat, 100 tons of baled straw, and 70 tons of baled hay, of the approximate value of $7,500. His total assets may roughly be said to be in the neighborhood of $49,000, against which he had an indebtedness of close to $32,000. It was appellant’s contention that, under the provision of the will, all that he was required to show was that in any one year his income was less than $600. The testimony established that the operation of the farm in question showed a net loss of approximately $3,000 in the year 1923.

In determining what was the intention of the testatrix by provision 3 of the will, we must follow the cardinal rule in the construction of wills that the intention of the testator must be ascertained, if possible. Clearly, in determining this intention, the court should take into consideration all the surrounding circumstances known to the testatrix at the time of the execution of her will. The business appellant was engaged in was that of farming. A business reverse must be a radical change for the worse — an unusual condition— an unexpected situation. Certainly it must be more than a mere failure to make a profit during any one year. Appellant admitted that the loss sustained in 1923 was due to lack of water and slump in prices. It is well known that the business of farming is not a continuously profitable one. It has its lean years and its fat ones, the same as most other enterprises. The words used in the will must he given an interpretation that carries with it their normal, ordinary and usual meaning. "Would a man engaged in any business that happened, for any legitimate reason fairly to be expected in the prosecution of the business, to fail to make a net profit in any one year say that he had suffered a business reverse? We think he more likely would say that he “had a poor year,” or that he “had made no profit” in that year.

It will be seen that, upon the happening of the event provided for in the will, to wit, business reverses that would make the income of appellant less than $600 a year, the income vests in the appellant for the balance of his life. Appellant contends that the words “at any time” should be construed to mean the same as if it read “during any one year of his life”; but we think these words mean that, if the condition is shown, then he may receive at any time during his life. The trial court found that the net worth of appellant, if taken out of the farm business entirely and invested in good securities at six per cent, would yield more than $600 per year, which was the minimum set in the will of decedent. If the construction which appellant puts upon this provision is correct it would mean that, even though appellant were worth a very large sum of money and the business in which it was invested failed for any one year to yield a profit of $600 net, although the previous and succeeding years were very profitable, he would then be entitled to inherit under this will. We think the intention of the decedent was that, whenever his assets or his earning ability should reach a point where it was apparent that, without some radical change therein, his income would appear to be permanently less than $600 a year, then he should inherit. Since the will provided that he was to inherit permanently upon the condition being shown, we think it a proper construction to say that his condition should partake also of a permanent character.

The judgment of the trial court is right and is affirmed.

Tolman, C. J., Parker, Mackintosh, and Mitchell, JJ., concur.