Herrick v. Miller

Citations

• 69 Wash. 456
• 125 P. 974
• 1912 Wash. LEXIS 933

Syllabus

<p>Wills—Construction—Intent—Community Property—Election by Widow—Property Devised—Presumption. A will devising all of the testator’s real estate, “and all interest therein, community or otherwise” of which he dies seized or to which he shall have the power of disposition by will, in trust to pay the net income to his wife during life or widowhood, does not show any intent to.devise the wife’s half of the community property, and hence does not put her to an election between her community interest and the provision made for her in the will; in view of the rulo that the necessity for an election must appear upon the face of the will itself, and the presumption that the testator intended to dispose of his own property only, in the absence of any designation of specific property (Chadwick, J., dissenting).</p> <p>Wills—Construction—Extrinsic Evidence—Election. For the purpose of forcing an election, extrinsic evidence is not admissible to establish the intent to dispose of property over which the testator had no testamentary power of disposition.</p> <p>Wills—Election—Evidence—Materiality. Where a widow was not required by a will to make an election between her community interest and the provision made for her in the will, it is immaterial whether her acts in dealing with the estate would have amounted to an election if the will had required it.</p> <p>Frauds, Statute oe—Conveyance oe Community Property— Oral Agreement. An oral agreement by a widow to allow her community interest in real estate to go under her husband’s will cannot be shown to divest her of her community interest, the statute requiring such conveyance to he by deed.</p> <p>Appeal—Review—Parties Entitled to Allege Error. One seeking, by an alternative prayer in the complaint, a partition of interests in a will contest, cannot allege error in the separation of interests in that the will contemplated the management of the property as a whole.</p>