THE PACIFIC REPORTER VOLUME 221 appellant. It was the duty of the respond ISAKSON v. UNITED FISHERMAN'S PACK-ent to ship ice from Seattle to Neah Bay, on ING CO. (No. 17978.) (Supreme Court of Washington. Dec. 10, 1923.) the Straits of Juan de Fuca, or to Bamfield, on Vancouver Island, and return to Seattle with a load of fish. Respondent continued to operate the boat under the terms of the contract during the summer of 1922 until on or 1. Shipping 59-Whether behavior of ship's captain justified discharge during contract pe-about the 4th day of August, the time of his riod held for jury. Whether the behavior and abusive language of a ship's captain, working under an employment contract for definite period, constituted sufficient ground for his discharge during such period, held for the jury. 2. New trial 162(5)-Reduction of verdict instead of granting new trial held proper. Where, in an action for breach of a con tract to employ plaintiff as ship's captain for a definite period by prematurely discharging him, a verdict for plaintiff for $2,284.54 was given, there being nothing to indicate passion or prejudice, held, that the trial court, plaintiff consenting, properly reduced the verdict to $1,600, instead of granting defendant's motion for new trial because of excessiveness. Department 2. Appeal from Superior Court, King County; John M. Ralston, Judge. Action by Carl W. Isakson against the United Fisherman's Packing Company. Judg ment for plaintiff, and defendant appeals. Affirmed. Tucker & Hyland, Ford Q. Elvidge, and Mary H. Alvord, all of Seattle, for appellant. Lloyd R. Savage, of Seattle, for respondent. dismissal by appellant from further service. Respondent asked judgment at the rate of $30 per day for 72 days, less the amount of $270 he had earned at other work after his discharge within the term of his employment, and further asked for the sum of $350 premium on a policy of marine insurance and interest under the terms of the contract whereby appellant was to pay the premium on certain insurance. The answer of appellant admitted the contract, denied the other material allegations of the complaint, and as an affirmative defense alleged that respondent had misrepresented the speed capacity of the boat and its ability to perform its requirements under the contract, and further alleged: "That the above-named plaintiff so behaved himself on board of said vessel while he was in the employ of the defendant that it was impossible for him to keep a crew upon said vessel on account of his quarrelsome disposition, and his failure to obey the orders of the above-named defendant. That the above-named plaintiff refused to obey the orders of the defendant, particularly in regard to where said vessel was to go and when it was to go. That the plaintiff continuously quarreled with the other employés of the defendant, and with the employés of the scows used to transport fish, PEMBERTON, J. This action was institut- quarreled with the customers of the defendant, ed for the recovery of damages by reason of so that it was impossible for the defendant to the breach of a contract of employment reuse the said plaintiff and said vessel in the mansulting from a dismissal of respondent by to the charter party, and the said plaintiff ner that he had expected to use it according appellant. Respondent is the owner and cap- by his said actions made it practically impossitain of a gas boat Service, and entered into ble for the defendant to carry on its fishing a written contract whereby he chartered the business, in which business the said boat Servboat to appellant for the period beginning ice was in daily use, and which was absolutely April 15 and ending October 1, 1922, inclusive, for which he was to receive the sum of $30 a day. It was also provided in the contract that respondent was to furnish the captain to operate the boat free of charge to necessary for the carrying on of said defend the plaintiff well knew, and for the aforesaid reasons the above-named defendant discharged the plaintiff and refused longer to employ the said vessel." ant's business. All of the above-named facts For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 221 P.-1 The answer admitted that there was due o insurance $182.50, but claimed that there was due from the respondent to appellant for various items the sum of $116.47, leaving a balance due to the respondent in the amount of $66.03. Respondent in its reply denied the allegations of the answer. $30 a day and paying for his oil and groceries. * I asked the captain to take the ice off the boat, and why he had refused to do it before. He said he wouldn't do it unless we The ice was there in the boat, in the process furnished other help to take it off additional. of melting, and everything in a perfect standstill. I took it up with Mr. Soderberg, and The jury returned a verdict in favor of the he told me that he didn't have a man on the respondent in the amount of $2,287.54. Up-scow that would work for Isakson. * * Q. on a motion for a new trial the verdict was reduced by the trial court to the sum of $1,600, and judgment entered therefor, from which judgment this appeal is taken. The appellant relies upon two grounds for reversal: First, it is insisted that under the undisputed evidence appellant was justified in dismissing respondent and terminating the contract; and, second, that, in the alternative, a new trial should have been granted, for the reason that the verdict is not sustained by the evidence, and because the court 'erred in its instructions to the jury. [1] It appears that on one occasion, after the fish from the boat had been unloaded, the customer refused to take them, and Mr. Young, the president and treasurer of the appellant company, requested respondent to take the fish to another dock in Seattle. Mr. Young testified that He * Was there any reason given you why the men on the scow would not work for Isakson on the boat? A. Because he had been so abusive and insulting and profane in his row with them the day before that they absolutely would have nothing to do with him. Q. Then what was done next following that? A. I told Captain Isakson that day to proceed to Bamfield and tow a scow that we had there and some oil drums to Seattle." The appellant requested the following instruction: "I instruct you that it was implied in the evidence in this case, and by the terms of the charter contract and agreement introduced in employment of the plaintiff by the defendant thereunder, that the plaintiff should conduct himself while carrying out the terms of the contract with ordinary decency, and not in a quarrelsome manner, and, if you find that the plaintiff, while pursuing his duties in connection with the fulfillment of the contract of service, did not conduct himself with ordinary decency, but was unnecessarily quarrelsome, the defendant would have a right to discharge him, and to terminate the contract, and that if it did discharge the plaintiff and terminate the contract under such circumstances the defendant will not be liable for damages for breach of the contract hereunder." This instruction was refused, and in place The witness then says that he employed a of it the court gave the following instruction: truck to move the salmon. Speaking of re"I instruct you that it was implied in the spondent, he said: "He wanted to quit. He charter contract or agreement introduced in wanted his pay right then and there." evidence in this cause and by the terms of the was then asked if Mr. Tanggard "patched employment of the plaintiff by the defendant that up." "A. He asked him-he said-told therein that the plaintiff should conduct himhim what a good man he was." Mr. Tang-self while carrying out the terms of the congard stated that "Capt. Isakson said, 'I am tract with ordinary decency, and not in a through. You can pay me off.' I talked him quarrelsome manner. If you find that the conout of the notion." Forty-one days thereafter a further difficulty arose. Concerning this Mr. Tanggard testified as follows: "The next time I had any difficulty with him was on the 26th day of July, when I received a telegram from Capt. Isakson at Neah Bay. I received two telegrams, one from Capt. Isakson and one from Mr. Soderberg, both in five minutes of each other. Isakson said, 'I am in a row with the crew at Neah Bay.' Soderberg said, 'Come to Neah Bay.' The next morning I arrived at Neah Bay. Isakson's boat had arrived the previous morning. When I arrived at Neah Bay they had not removed the hatches -had not taken the hatches off; had not unloaded any ice whatever. Everybody was in a state of anger. Nobody was working. The captain's time was going on. I was paying him duct of the said plaintiff was the cause of or did cause the defendant injury to his business, then the defendant would have the right to discharge him and terminate the contract, and if the said defendant did discharge the plaintiff under such circumstances the plaintiff would not be entitled to recover." It is claimed by appellant that under this instruction the character and the conduct of respondent were immaterial so long as no injury resulted to the business of appellant, and that this is contrary to our holding in Moynahan v. Interstate Min., etc., Co., 31 Wash. 417, 72 Pac. 81. The instruction, however, calls to the "attention of the jury the fact that the respondent should conduct himself while carrying out the terms of the con (221 P.) tract with ordinary decency, and not in a quarrelsome manner, and that he could be discharged if his conduct caused injury to the business of appellant. In instruction No. 7 the court told the jury that appellant had a right to discharge respondent if he "failed or refused to obey the reasonable orders of the defendant in this case, or failed to carry out and fulfill the reasonable instructions of the defendant in this case while carrying on the contract which has been admitted in evidence." The testimony in this case offered by appellant shows that when the trouble arose in Seattle respondent desired to discontinue his services with appellant company, and they persuaded him to continue in their employ, and told him that he was a good man. When the trouble arose at Neah Bay, instead of dismissing respondent, they directed him to proceed to Bamfield to tow a scow, and kept him in their service for eight days thereafter. It would seem that both acts complained of were waived and condoned. Clark v. West, 193 N. Y. 349, 86 N. E. 1; A. Z. A. Realty Corporation v. Harrigan's Café, 113 Misc. Rep. 141, 185 N. Y. S. 212; Alsen's American Portland Cement Works v. Degnon Contracting Co., 222 N. Y. 34, 118 N. E. 210. Were we to hold that appellant had not waived or condoned the conduct of respondent by continuing him in its service the question as to whether or not the behavior and abusive language constitute sufficient ground for discharge is a question of fact for the jury, and not for the court. The trial court properly denied the motion for judgment notwithstanding the verdict, [2] It is contended that the verdict is the result of passion and prejudice, and a new trial should have been granted, instead of reducing the verdict, relying on the case of Olson v. Northern Pac. R. Co., 49 Wash. 626, 96 Pac. 150, 18 L. R. A. (N. S.) 209, where we said: "We might follow our usual practice and reduce the judgment to such sum as the respondent is entitled to recover in our view of the facts, and require him to accept that amount or submit to a new trial, but the right of recovery is doubtful at best, and the verdict discloses such passion and prejudice on the part of the jury that it would be unjust to hold a litigant foreclosed by any of the findings. The judgment is therefore reversed and the cause remanded for a new trial." In re CHELLEW'S ESTATE. (Supreme Court of Washington. Dec. 10, 1. Executors and administrators 513 (15)— Inheritance right in property discovered after close of administration asserted through further administration. One may assert his inheritance right in property discovered as belonging to the estate after the close of an administration of the estate in due course through further administration, as provided by Rem. Comp. Stat. § 1550. 2. Executors and administrators 315(6) — Wills 776-Testamentary trust held to lapse on death of trustee; and former decree not to bar further administration. the residue of property to be handled and used Where property was left to executor in trust to be expended as he saw fit for the benefit of widows and orphans of the World War, and he died after distribution to him as trustee, before expending the entire amount, and an administratrix de bonis non was apof a petition by one claiming to be sole heir of pointed to administer the remainder, the filing the testator was not premature, even though such an accounting may disclose facts which may call for a further final accounting, and possibly a necessary postponing of final accounting and distribution, under Rem. Comp. Stat. § 1550. Department 1. Appeal from Superior Court, Lewis County; W. A. Reynolds, Judge. In the matter of the estate of Samuel Chellew, deceased. Petition by Vivian Chellew praying that Fannie E. White, administratrix de bonis non of the estate of Samuel Chellew, deceased, be required to account and distribute certain property. From an The trial court, upon the consent of the respondent, properly reduced the verdict to $1,600. There is nothing in this case that indi-order dismissing the petition, he appeals. cates that the verdict was the result of passion or prejudice of the jury. The judgment will be affirmed. MAIN, C. J., and MITCHELL, FULLERTON, and BRIDGES, JJ., coneur. Reversed and remanded, with directions. O. J. Albers, of Chehalis, for appellant. PARKER, J. This is an appeal by Vivian For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes C. White died. On October 9, 1922, Fannie E. White, widow of S. C. White, filed in the probate proceedings her petition for the ap pointment of herself as administratrix de bonis non of the estate of Samuel Chellew, deceased, alleging in part as follows: for Lewis county sustaining a motion to dismiss his petition filed in the matter of the estate of Samuel Chellew, deceased, pending in that court, wherein he prays that Fannie E. White, the administratrix de bonis non of the estate of Samuel Chellew, deceased, be required to account for the remaining property of the estate, and that such property be distributed to him as the sole heir of Samuel Chellew, deceased. The motion to dismiss appellant's petition was made by the administratrix and sustained by the superior court upon the theory that the petition did not show any cause for relief, taking into consideration the record of the probate proceed-in England; that under the decree of distribuings. In other words, the motion was treated as a demurrer to the petition; it being deemed amplified by the record in the probate proceedings. The controlling facts, as we view them, alleged in appellant's petition and found in the record of the probate proceedings, may be summarized as follows: On December 8, 1916, Samuel Chellew, then a resident of Lewis county, in this state, made his last will and testament, the following provisions of which are the only ones of any moment in our present inquiry: "That at the time of the decease of the said S. C. White the estate was not fully settled and distributed, and is not at this time, the particular omission being as follows: That there remains in the Barclay's Bank, Limited, at St. Ives, Cornwall, England, the sum of 266 pounds, 12 shillings, and 9 pence, which money had been placed there by S. C. White to be distributed to certain parties residing tion this money was distributed to S. C. White to be disposed of at his discretion, but, on account of failing health, he neglected to check this money out of the bank, and the same is now there on deposit to the credit of the estate of Samuel Chellew, deceased. That said money can only be removed from said bank by an order of the probate court having jurisdiction over the estate, and it is necessary to have an administrator appointed as successor to the deceased executor, and that your petitioner has an interest in said funds, and is a fit and proper person to be appointed as such administratrix." "I give and bequeath unto my executors here- Following the giving of the usual notice, inafter named all the rest and residue of my the superior court entered its order appointproperty of whatsoever kind and nature, wher-ing Mrs. White administratrix de bonis non ever situate, to be handled and used by them as as prayed for by her, and we assume that trustees, as they deem best, and to whom they she duly qualified by giving bond according may decide best, for the use of orphans and widows, whose homes are in the two parishes to the order of her appointment, although of St. Ives and Towednack, England, to be ex- the portion of the record before us does not pended by them for the relief of worthy or-affirmatively so show. On March 5, 1923, apphans and widows of the war with Germany." "Lastly, I hereby nominate and appoint S. C. White trustees and the executors of this, my last will and testament. ing the appointment of Mrs. White as administratrix de bonis non; alleging the existence of the undistributed balance of the trust funds in the bank in England, as alleged in Mrs. White's petition for appointment as administratrix de bonis non; alleg. ing upon information and belief the exist pellant filed in the probate proceedings his petition praying, in substance, that Mrs. White, as administratrix de bonis non, be required to account for all trust property of the estate remaining in the hands of S. C. While this language seems to contemplate White and undistributed at the time of his the appointment of more than one executor death, and that all of such property be disand trustee, it is to be noticed that the de-tributed to petitioner as the sole surviving ceased actually appointed only one, to wit, heir of Samuel Chellew, deceased; alleging S. C. White. On December 9, 1916, Samuel as grounds therefor the several steps taken Chellew died in Lewis county, leaving prop-in the probate proceedings up to and includerty in this state. On December 13, 1916, the will of deceased was duly proven and admitted to probate in the superior court for Lewis county, and the appointment of S. C. White as executor duly confirmed by that court. S. C. White entered upon his duties as executor, in due course giving notice to creditors and causing an inventory and ap-ence of other undistributed trust property in praisement of the property of the estate to the hands of S. C. White, at the time of his be duly made and filed. On April 6, 1921, death, of the approximate value of $10,000; the estate being ready for settlement and and alleging that petitioner is a brother and distribution, in so far as its administration the sole heir of Samuel Chellew, deceased, by the executor was concerned, upon due no- and as such is entitled to all of the undistice being given, an order and decree was tributed trust property remaining in the duly entered, approving the executor's final hands of S. C. White at the time of his account and making distribution of the prop-death, because of the lapse of the trust beerty of the estate here in question, to S. C. White in 'trust for use by him as directed by the terms of the will. On June 5, 1922, S. quest to S. C. White in the will of Samuel Chellew, in so far as the property so bequeathed was undistributed by S. C. White (221 P.) which is plainly contemplated may be asserted through further administration as provided by, section 1550, Rem, Comp. Stat. at the time of his death. On March 12, 1923, | ing to the estate after the close of an adminMrs. White as administratrix de bonis non istration of the estate in due course, a right moved the court for dismissal of appellant's petition, specifying several grounds therefor, such as to make her motion in effect a demurrer to the petition when read in the light of the probate proceedings. On April 4, 1923, this motion to dismiss appellant's petition was heard by the court and sustained, and an order entered accordingly finally dismissing the petition. This is the order here sought to be reversed. [1] We first inquire as to whether, if the allegations of appellant's petition as amplified by the record in the probate proceedings be true, there remained trust property in the hands of S. C. White at the time of his death now available to Fannie E. White as administratrix de bonis non of the estate of Samuel Chellew, deceased. The fact that there is such undistributed trust property seems settled by her own allegations in her petition for her appointment as administratrix de bonis non, in so far as the money on deposit in the bank in England is concerned; which allegations are also made in substance in. appellant's petition for the distribution of such property to him as the sole heir of Samuel Chellow, deceased. It may be, however, upon the final hearing of Vivian Chellew's petition upon the merits, that is, upon the accounting of Mrs. White as administratrix, which he prays shall be now had, it will appear that this fund admitted by her to be in the bank in England is not available to her. This, however, is a matter for final determination upon the merits in her accounting, as is also the question of her accounting for any other undistributed trust property remaining in the hands of S. C. White as trustee at the time of his death. On these questions we hold that Vivian Chellew's petition, read in the light of the record in the probate proceedings, properly tenders questions of fact as to the existence of any undistributed trust funds in the hands of S. C. White at the time of his death and now available to Mrs. White as administratrix de bonis non of the estate of Samuel Chellew, deceased. There is manifestly no longer any necessity for delaying final accounting and distribution of such undistributed trust property, in so far as the payment of the debts of the estate are concerned, that matter having been settled by the previous decree of distribution. This is only an effort on the part of appellant to have expeditiously accounted for and distributed to him as the heir of Samuel Chellew, deceased, property which has reverted, as he claims, to the estate of Samuel Chellew, deceased, after a settlement and distribution of that estate in due course of administration. In other words, it is an effort on his part in substance to assert his inheritance right in property discovered as belong [2] Assuming that there remained some trust property in the hands of S. C. White at the time of his death undistributed by him under the terms of the will of Samuel Chellew, deceased, and that appellant is his heir, as we must now assume in view of the motion of the administratrix to dismiss Vivian Chellew's petition being in effect a demurrer thereto, we inquire whether or not such undistributed property has reverted to the estate of Samuel Chellew, deceased, subject to distribution to appellant as an heir Of course, if of Samuel Chellew, deceased. there be no such reversion of property to the estate, then appellant has no interest supporting his right to be heard in this controversy, since he is seeking only to have the administratrix account for such reverted property. We have seen that by the terms of the will of Samuel Chellew the property here drawn in question was bequeathed to S. C. White în trust "to be handled and used by him as trustee, as he deems best, and to whom he may decide best, for the use of orphans and widows, whose homes are in the two parishes of St. Ives and Towednack, England, to be expended by him for the relief of worthy orphans and widows of the war with Germany." Thus it is made plain that S. C. White received this property in trust, accompanied by the sole discretionary power on his part to expend and distribute it to those "whom he may decide best" of the orphans and widows of the class named. In other words, the will of the testator was to 'be ultimately expressed solely through S. C. White as trustee of the property, which, it seems to us in the light of the authorities, renders it plain that when S. C. White died there was not left any power in any one through which the will of the testator might be expressed looking to the expenditure and distribution of the undistributed property remaining in the trust. We have in this country two leading decisions which seem to us to lead irresistibly to the conclusion that this trust lapsed, in so far as undistributed property thereof remained in the hands of S. C. White at the time of his death, in effect leaving the same as unadministered and undistributed property of the estate of Samuel Chellew, deceased, with reference to which he must now be regarded as dying intestate. In Fontain v. Ravenel, 58 U. S. (17 How.) 369, 15 L. Ed. 80, the Supreme Court of the United States had under consideration a problem substantially as presented here, except that in that case the trustees died before they were called upon to exercise their discretion in designating the beneficiaries. That we think, however, does not change the |