I dissent. Appellant contends, and the majority holds, that a pension is a gratuity and not a right; that it inures to the pensioner personally and not to his estate. In support of this position, appellant cites Whitaker v. Clausen, 57 Wash. 268,106 P. 745, 107 P. 832, and In re Snyder's Petition,93 Wash. 59, 160 P. 12, 3 A.L.R. 1230. While in the latter case it is asserted that a mother's pension is "in the nature of a largess or bounty," I think the decision has no bearing upon the problem presented here. For in that case, it is simply held that a mother who qualified and received a pension under the mother's pension act of 1913 (Laws of 1913, chapter 179, p. 644) had no ground for complaint because of the repeal of that act and the passage of a new act (Laws of 1915, chapter 135, p. 364) setting up conditions under which she could not qualify. There was not involved in that case any right to pension payments which hadaccrued under the 1913 act.
The case of Whitaker v. Clausen, supra, is not distinguishable in principle from the case at bar. But I think the case is no longer authority upon the point cited. For in later decisions, the court has departed from the theory that a pension is "in the nature of a largess or bounty." State ex rel.Hart v. Clausen, 113 Wash. 570, 194 P. 793, 13 A.L.R. 580;Conant *Page 611 v. State, ante p. 21, 84 P.2d 378. In the latter case, we have just held that one having the qualifications prescribed in Laws of 1937, chapter 156, p. 549, § 3, is entitled as a matter of right to an old age pension in the minimum amount fixed by § 4 of that act, p. 549 (Rem. Rev. Stat. (Sup.), § 9998-6 [P.C. § 6233-156]). And it was further held that the right accrues on the date the application is made.
In the light of this last decision, I think it is clear that respondent's intestate had a vested right in the minimum pension prescribed in Laws of 1935, chapter 106, p. 261, § 4, accruing between the date of his application and the day of his death. 21 R.C.L. 243; Kavanagh v. Board of Police Pension FundCommissioners, 134 Cal. 50, 66 P. 36; Gibbs v. MinneapolisFire Dept. Relief Ass'n, 125 Minn. 174, 145 N.W. 1075, Ann. Cas. 1915C, 749.
The decedent's right being vested, the pension was, in so far as it had accrued, an asset of his estate, to which the administrator is entitled, and for which he may maintain this action. Foot v. Knowles, 4 Met. (Mass.) 386; Slade v. Slade, 11 Cush. (Mass.) 466.
I think the judgment should be affirmed.
MAIN, J., concurs with BLAKE, J. *Page 612