46 Wn.2d 298, In the Matter of the Estate of EBEN E. ROBINSON, DeceasedHARVEY E. ROBINSON, as Executor, Respondent, v. HELEN MARIE BAKER, Appellant

[No. 33133. Department One.      Supreme Court      March 10, 1955.]

In the Matter of the Estate of EBEN E. ROBINSON,
                                   Deceased.

HARVEY E. ROBINSON, as Executor, Respondent, v. HELEN
                          MARIE BAKER, Appellant.1

[1] WILLS - CONSTRUCTION - INTENT OF TESTATOR - LANGUAGE OF INSTRUMENT. If possible, the intent of a testator must be determined Without going outside the four corners of the will.

[2] SAME - CONSTRUCTION - TIME FROM WHICH WILL SPEAKS. A will speaks as of the date of the death of the testator; but his intention is determined as of the time of the execution of the will.

[3] SAME - CONSTRUCTION - INTENT OF TESTATOR - PRESUMPTIONS. A testator's presumed to have knowledge of his title to real estate; and where he owns only a partial interest in property, the language of the will will be construed that he intended to give only the interest he was able to dispose of.

[4] SAME - RIGHTS AND LIABILITIES OF DEVISEES. Where a testator, at the time he executed his will, was purchasing real estate on contract and had sold it on contract to third persons, and he bequeathed to his daughter the balance due him on that contract at the time of his death, such bequest was subject to the balance due at that time on the contract under which he was purchasing the real estate.

[5] APPEAL AND ERROR - REVIEW - HARMLESS ERROR - ADMISSION OF EVIDENCE - PREJUDICIAL EFFECT. The admission of testimony concerning the intent of a testator with reference to a bequest was erroneous where such intent was ascertainable from the will itself without the necessity of extrinsic evidence; however, held in this case that the error was harmless.

1 Reported in 280 P. (2d) 676.

[2] See 103 A. L. R. 1219; 57 Am. Jur. 797.

 Mar. 1955]         IN RE ROBINSON'S ESTATE.           299

Appeal from an order of the superior court for Thurston county, No. 10698, Wright, J., entered August 16, 1954, in probate proceedings, directing the payment of a bequest subject to a deduction. Affirmed.

Rudolph Naccarato, for appellant.

Parr & Baker, for respondent.

OTT, J. -

The will of Eben E. Robinson, dated July 31, 1953, was admitted to probate in Thurston county, and provided in substance as follows:

(1) That all just debts be paid.

(2) That the executor would act without court intervention.

(3) That his daughter, Helen Marie Baker, should receive certain specifically described real estate, being the property here in question. The testator provided with reference thereto as follows:

". . . together with and subject to that certain real estate contract, as represented by the unpaid balance Of said contract, which is dated December 21, 1950, to Leo [sic] H. Krembs and Beverly R. Krembs, husband and wife, as Buyers. This provision for and to my daughter and her participation in my estate is limited to the unpaid balance, if any, of said contract at time of my demise."

(4) All the residue of the estate was devised and bequeathed to Harvey E. Robinson, son of decedent.

The record discloses that, at the time of making the will, the testator did not own the fee title to the real estate described in the third paragraph of the will. The testator had, on December 15, 1949, purchased the real estate on contract from Kenneth G. Fry and Minnie Fry, his wife. The contract provided that the balance of four thousand dollars was to be paid at the rate of not less than forty dollars a month, and, upon the contract being paid in full, a deed was to be delivered to Eben E. Robinson.

On December 30, 1949, Kenneth Fry and his wife assigned the contract to the Olympia Federal Savings and Loan Association.

 300    IN RE ROBINSON'S ESTATE. [46 Wn. (2d)

December 21, 1950, Eben E. Robinson sold the real estate on contract to Lee H. Krembs and Beverly R. Krembs, his wife, for seventy-two hundred dollars. One thousand dollars was paid down, and the balance of sixty-two hundred dollars was to be paid at the rate of fifty dollars a month. Although there was a substantial sum still due on the Fry contract, the Krembs contract was silent with reference to it. Eben E. Robinson contracted to deliver to Lee H. Krembs and his wife a warranty deed to the premises, upon payment of the contract in full.

Eben E. Robinson died December 3, 1953. At the time of his death, the unpaid balance of the Krembs contract was $5,300.33. The unpaid balance on the Fry-Robinson purchase contract, which had been assigned to the Olympia Federal Savings and Loan Association, was $2,886.78.

From an order of court directing the executor to pay to Helen Marie Baker the amount of the unpaid balance of the Krembs contract, less the $2,886.78 due on the Fry contract for the purchase price of the real estate, Helen Marie Baker has appealed.

[1, 2] If it is possible to do so, the intent of a testator must be determined without going outside the four corners of the will. RCW 11.12.230 [cf. Rem. Rev. Stat., 1415]. In re Lidston's Estate, 32 Wn. (2d) 408, 414, 202 P. (2d) 259 (1949), and cases cited; In re Levas' Estate, 33 Wn. (2d)535, 206 P. (2d) 482 (1949); In re Torando's Estate, 38 Wn. (2d) 642, 644, 228 P. (2d) 142 (1951). A will speaks as of the date of the death of the decedent, but the intention of the testator is determined as of the time of the execution of the will. In re Phillips' Estate, 193 Wash. 194, 74 P. (2d)1015 (1938); Tacoma Savings & Loan Ass'n v. Nadham, 14 Wn. (2d) 576, 592, 128 P. (2d) 982 (1942).

[3] Likewise, a testator is presumed to have knowledge of his title to real estate. In re McNulta's Estate, 168 Wash. 397, 403, 12 P. (2d) 389 (1932). Where a testator owns only a partial interest in property, the language of the will will be construed that he intended to give only the interest he was able to dispose of, the presumption being that he did

 Mar. 1955]         IN RE ROBINSON'S ESTATE.           301

not intend it to apply to that over which he had no disposing power. Tacoma Savings & Loan Ass'n v. Nadham, supra, p. 593.

[4] At the time the testator executed his will, he knew that he could not deliver title to Krembs until he had paid the Fry contract in full. when he made the bequest to Helen Marie Baker, he knew that she would be required to pay the Fry contract before she could deliver the deed to Krembs, and thus demand and receive the balance of the Krembs contract.

We conclude that the court did not err in directing that the bequest was subject to the amount remaining unpaid on the Fry contract.

[5] Appellant contends that the court erred in permitting the attorney who drew the will, and a bank representative, to testify, over appellant's objection, concerning the intent of the testator with reference to the bequest in question. With this contention, we agree for the reason that the intent of the testator in this respect was ascertainable from the document itself, without the necessity of extrinsic evidence. Donnelly v. National Bank of Washington, 27 Wn. (2d) 622, 624, 179 P. (2d) 333 (1947), and cases cited.

For the reasons stated, however, the error was harmless.

The order of the trial court is affirmed.

HAMLEY, C. J., SCHWELLENBACH, DONWORTH, and FINLEY, JJ., concur.

April 25, 1955. Petition for rehearing denied.