Rubenser v. Felice

Hill, J.

The sole issue in this case is whether, under the laws of this state, a testator may leave a remainder over after a life estate to the heirs of the person holding the life estate.

It seems obvious that a testator, whether he wants to protect his wife from improvidently dissipating valuable income property in her lifetime, as suggested in the present case, or who for any other reason wants to create a life estate, with the remainder over in others, should have that right. It is conceded that he does, except in the event that he names as the remaindermen the heirs of the life tenant. In that event, we are told that the Rule in Shelley’s Case applies and the life tenant becomes vested with a fee-simple title, which is clearly what the testator was seeking to avoid.

The question of whether the Rule in Shelley’s Case is still applicable to wills in this state is before us by reason of the following circumstances:

Frank J. Geissler died in 1936, leaving a will executed April 1, 1936, which contained the following provision:

“I give and bequeath unto my beloved wife, Teresa Geissler, of Odessa, Washington, all the rest, residue, and remainder of my estate, real, personal, and mixed, of whatsoever kind or nature and wherever situated, of which I may die seized or possessed, for and during the term of her widowhood, and should she remain a widow during the remainder of her life on her death to her heirs absolutely and in fee, and in the event of her remarriage during her lifetime, then and on the happening of that event to the St. Joseph’s Catholic Parish of Odessa, Lincoln County, State of Washington, absolutely and in fee forever.”

Teresa Geissler did not remarry, and died in 1960, leaving a will by which she devised the bulk of her estate to others than her heirs. The controversy is between the devisees, claiming under her will, and her heirs, claiming as re-maindermen under the will of Frank Geissler.

This action by the heirs of Teresa Geissler is to quiet title to real estate owned by Frank Geissler at the time of his death. On an application for summary judgment, the trial court dismissed the action, and the pivotal findings of fact were:

Finding of fact No. 14:

“On April 1, 1936 [the date of Frank Geissler’s will], and at all times since, the Rule in Shelley’s Case, as a part of the common law, was and is in force in the State of Washington. Said Rule in Shelley’s Case is stated as follows:

“ Tf an estate for life is granted by an instrument and the remainder is limited by the same instrument, either mediately or immediately, to the heirs of the life tenant, the life tenant takes the remainder as well as the life estate.’ ”

Finding of fact No. 16:

“The language used in paragraph 10 of the will of Frank J. Geissler, which purports to convey an interest in the property owned by him to the plaintiffs herein after the death of Teresa Geissler, calls for the application of the Rule in Shelley’s Case, and said paragraph 10 does not convey, devise or bequeath any interest in the property to the plaintiffs or any of them.”

The trial court’s findings correctly state the Rule in Shelley’s Case, as we have stated it in Shufeldt v. Shufeldt (1924), 130 Wash. 253, 227 Pac. 6. The question now before us for the first time is whether that rule is applicable to wills in this state as a part of the common law.

The text writers, with great unanimity, denounce the rule as of feudal origin and clearly violative of the testator’s inténtion; and most states have abolished it as to wills.

Our determination of this matter is not to be influenced by earlier obiter dicta statements, or by what it has been assumed that we might do. We are concerned only with whether the legislature intended to and has abrogated the Rule in Shelley’s Case in Washington as it applies to wills. For the first time we have undertaken an examination and analysis of the relevant statutes.

We first consider the purpose and effect of § 45 of “An Act Relating to Wills” (Laws of 1854, p. 318):

“If any person, by last will, devise any real estate to any person, for the term of such person’s life, and after his or her death, his or her children, or heirs, or right heirs in fee, such devise shall vest an estate for life only in such devises, and remainder in fee simple in such children.”

While the intention of the very first session of the territorial legislature to abrogate the Rule in Shelley’s Case is unmistakable, and the intent that no devisee of a life estate was to receive more than a life estate is very clear, the efficacy of the statute was seriously affected by the failure to add, after the last word “children,” the words “heirs or right heirs.”

The territorial legislature, in January 1860, enacted a comprehensive probate code of three hundred and eighty-eight sections which specifically repealed the 1854 act, and by chapter II, “Wills, and rules applicable to and governing their construction,” § 37, substituted the following:

“If any person, by last will, devise any real estate to any person for the term of such person’s life, such devise vests in the devisee an estate for life, and without the remainder is specially devised to the heirs of said devisee, it shall revert to the heirs at law of the testator.” (Laws of 1860, p. 172)

This, likewise, evidenced the legislative intent to abrogate the Rule in Shelley’s Case and to make certain that no devisee of a life estate received more than a life estate; but it inadvertently substituted a new and even more artificial rule, still violative of the testator’s intention. If the word “without” was interpreted to mean unless (the usual interpretation), it limited the right of a testator to provide for any remainder over except to the heirs of said devisee, for if he named other remaindermen there was a reversion to his own heirs. This would have produced an unthinkable result for which there was no precedent and no reason. If “without” was interpreted as if (for which we have no authority), then it made valid the estate for life, but prevented any remainder over to the heirs of the life tenant — - not by vesting a fee title in the life tenant, but by giving the heirs of the testator a reversionary interest.

This was re-enacted verbatim in the 1862 Probate Practice Act (being § 70 and part of the chapter relating to “Wills, and Rules applicable to and governing their construction” (Laws of 1862, chapter V, p. 210)). It remained unchanged until the adoption of a new probate code in 1917. Since that date the law has been that,

“If any person, by last will, devise any real estate to any person for the term of such person’s life, such devise vests in the devisee an estate for life, and without the remainder is specially devised, it shall revert to the heirs at law of the testator.” Laws of 1917, c. 156, § 40, p. 653; now RCW 11.12.180.

This is the statute with which we are presently concerned. Again, the legislative intent to abrogate the Rule in Shelley’s Case and to limit the devisee of a life estate to that life estate remains constant. The devise of the remainder is clearly contemplated, and the situation is safeguarded where the testator fails to specify who is to take real property after the termination of the life estate when the statute says:

“ . . . and without the remainder is specially devised, it shall revert to the heirs at law of the testator.”

Interpreting “without” as unless, this statute eliminates the confusion inherent in the 1860 and 1862 statutes relative to reversions and gives effect to the intent of the testator insofar as it is specifically expressed. We think there can be no doubt that a remainder is “specially devised” when it is devised to the heirs of a life tenant.

We have here a life estate to Teresa Geissler, with a devise of the remainder to the heirs of Teresa Geissler. The heirs of Frank Geissler have no claim to the real property and are making none, because there was a life estate to Teresa Geissler and the remainder was “specially devised.” The devisees of Teresa Geissler have no claim to the real property in question here, because she had — by Frank Geissler’s will — only a life estate, and under the statute that is all such a devise could give her; consequently, she had no interest in real estate to devise.

The trial court has misconstrued the effect of RCW 11.12.180 and its forerunners. The Rule in Shelley’s Case, as it relates to wills, has been abrogated by the legislature; and were it deemed advisable to do so, it could do likewise as to deeds and trust agreements.

The summary judgment in favor of the devisees under the will of Teresa Geissler should be reversed, and a summary judgment entered quieting title in the heirs of Teresa Geissler.

Finley, C. J., Mallery, Rosellini, Ott, and Foster, JJ., concur.