[WSBARP] What estate is this

[Dewey Weddle]

Garl,

I could be wrong, but I think Windy gets the property subject to a life estate for Mary.  However, in answer to your other questions regarding the scope of the life estate, perhaps the following cites will help (or not):

The rule is well established that the holder of a life estate created by will is entitled to all income derived from the estate during his or her tenancy unless the enjoyment of the life estate is specifically limited in terms as clear and decisive as those granting the life estate.  In re Douglas' Estate, 65 Wash.2d 495, 498–99, 398 P.2d 7 (1965). This includes the right to sublease the life estate property and collect rents.

The principle is well settled that a life tenant who is the holder of a present estate for life in real property is entitled to the possession and use of the property.... Closely associated in legal theory with the life tenant's right of possession is his right to the issues and profits of realty during the duration of the life estate, and his analogous right to the rents received as income from letting possession of the property, for a consideration, to some person.  51 Am.Jur.2d, Life Tenants and Remaindermen, § 32, at 256 (1970)

“An estate ... given in one part of a will in clear and decisive terms ... will not be taken away or cut down by doubtful language of a subsequent clause, but only by positive provision in words as clear and decisive as those which created the estate.”  In re Douglas' Estate, 65 Wash.2d at 499, 398 P.2d 7 (citations omitted). “The intention which controls is that which is positive and direct, not that which is merely negative or inferential.”  Id.  In re Estate of Campbell, 87 Wash. App. 506, 510–11, 942 P.2d 1008, 1011 (1997)

As always, best regards,


Dewey ​​


Law Office of Dewey W. Weddle, PLLC

909 7th Street

Anacortes, WA 98221


Telephone: 360-293-3600

Fax 360-293-3700


.

________________________________
From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> on behalf of K. Garl Long <Garl at longlaw.biz>
Sent: Thursday, March 18, 2021 4:11 PM
To: WSBA RPPT Real Property Discussion Forum <wsbarp at LISTS.WSBARPPT.COM>
Subject: [WSBARP] What estate is this


Long time caretaker promised real property by decedent in payment for providing care.  Decedent's will provides:

"If she survives me, I hereby give, devise and bequeath to Mary for her life, and then to Windy, the farm property legally described as ..."

Does Mary receive in fee simple, an estate measured by her life (which she can alienate), a life estate for which she can collect income (but does not have to pay expenses), or some other possessory estate?

Or perhaps the scrivener just meant that if Mary did not survive the decedent it should go to Windy?

You thoughts most valued and appreciated,

Garl

--

Law Offices of K. Garl Long - Mount Vernon, Washington - (360) 336-3322

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