Auger v. Shideler, 29661.

• Decision Date: 03 August 1945
• Docket Number: 29661.
• Parties: AUGER et al. v. SHIDELER.
• Court: Washington Supreme Court

161 P.2d 200

23 Wn.2d 505

AUGER et al. v. SHIDELER.

No. 29661.

Supreme Court of Washington

August 3, 1945

Department 1.

Action by Florence Horch Auger and others against Anna Shideler individually and as executrix of the last will of August Horch, deceased, and others for an adjudication that each of the parties was the owner of a specified undivided interest in property belonging to decedent's estate. From a judgment for plaintiffs, named defendant appeals.

Affirmed.

MILLARD J., dissenting.

Appeal from Superior Court, Adams County; Matt L Driscoll, judge.

George H. Freese, of Ritzville, and C. E. H. Maloy, of Seattle, for appellant.

Edward C. Cross, of Ritzville, for respondents.

GRADY Justice.

This action was brought by Florence Horch Auger, Floyd Horch and Lucille Horch Warren against Anna Shideler, individually and as executrix of the will of August Horch, deceased, Marie Irwin and Mollie Pettijohn to secure a decree of the court that each of them was the owner of an undivided one twelfth interest in all of the property belonging to the estate of August Horch, deceased, then in the process of administration. A trial was had resulting in such a decree from which Anna Shideler, individually and as executrix of the will of the decedent, has taken this appeal.

On and prior to January 27, 1928, August Horch and Marie Horch, husband and wife, were residents of Adams county, Washington. On that date they were of the ages of seventy and fifty-nine years, respectively. They had been engaged in farming operations and had accumulated a substantial amount of community property. They had three adult daughters who are the defendants. There was also a deceased son, August Horch, Jr., who left the plaintiffs surviving him. Mr. and Mrs. Horch were not educated people. They could understand and speak the English language to some extent, but were better versed in the German language. They had discussed between themselves how they desired to dispose of their property in the event of death, but had never made any wills.

These facts are not in dispute, and there is no conflict with reference to any inferences that may be legitimately drawn from them in connection with what transpired relative to the making of their wills.

The evidence in the case consisted of the deposition of Richard B. Ott, the testimony of Philip Pfeifer and the defendant Marie Irwin, called as an adverse witness, and some documentary evidence. No findings of fact were made by the court, but the trial judge filed a memorandum decision which is in the statement of facts.

The appellant suggests that as the principally decisive factors of the case are derived from the deposition of Richard B. Ott we should in our review of the record consider the evidence independent of any finding or conclusion made or reached by the trial court, weigh it all, draw our own inferences from it and all of the surrounding circumstances, and determine therefrom what findings and decision should have been made. We accept this suggestion and shall make our approach to the record accordingly. We shall also adopt the strongest rule suggested by our decisions that in a case of this kind the proof of an agreement for the disposition of property after death and to make mutual wills must be by evidence which is conclusive, definite, certain and beyond all legitimate controversy.

On January 27, 1928, Mr. and Mrs. Horch came to the office of Richard B. Ott, an attorney at law, and informed him that they had made an agreement relative to the disposition they wanted to make of their property in the event of their death and had agreed to make their wills. They sought information from him as to the effect of the wills which they made known to him they had in mind. Mr. Ott explained to them the meaning and effect of mutual wills. It appeared from their conversation that they had three grandchildren whose parents were deceased and they desired that the share of their property that their deceased son would have received should go to his three children; that they desired the balance of their property be given to their three living children in equal shares, and that the survivor of them should have a life estate in the property of the other contingent upon remaining unmarried, and in the event of marriage the community interest of the one deceased should then vest in the children and grandchildren named in the shares provided. Mrs. Horch made known her desire to give the deceased son's share to his children to which Mr. Horch assented, and from what was said it was made clear to Mr. Ott that unless this was to be the effect of her will she would not make one. The conversation made it clear also that the manner of the disposition of their property had been talked over and mutually agreed upon Before consulting Mr. Ott. They wanted similar wills, and when they learned from Mr. Ott that what he termed 'mutual' wills meant that neither will could be changed except by consent of both parties and that their agreement would be binding on both of them if no change was made prior to the death of one or the other, they both then made known to Mr. Ott that such were the kind of wills they desired. They did not use the word 'mutual' when referring to their wills, but it is very clear that when they told Mr. Ott what their agreement was it appeared they wanted mutual wills, and they both confirmed this when the effect of mutual wills was explained to them by him. Mr. Ott then prepared the wills. Before the wills were executed Mr. Ott read over each will, a paragraph at a time, and then translated what he had read into the German language. Mr. Pfeifer, a brother of Mrs. Horch, was present. He looked over the wills to see if they were alike. After this was done Mr. and Mrs. Horch stated the wills were in accordance with their previous agreement and they were then executed in the presence of witnesses.

About all that can be gathered from the testimony of Mr. Pfeifer is that Mr. and Mrs. Horch had told him that when they made their wills they wanted him to be a witness to them; that he went with them to Mr. Ott's office and they told Mr. Ott they had agreed to make their wills and what they wanted put in them and the shares of the property they wanted their children and grandchildren to have; that Mr. Ott explained to them the effect of the wills; that the wills were prepared by Mr. Ott, read over by him in English and then translated into German and Mr. and Mrs. Horch said that was the way they wanted them; that he looked the wills over to see that they were alike.

Marie Irwin stated that she had heard her mother say the things related by Mr. Ott in his deposition about the agreement between her parents as to how they wanted to dispose of their property; also that her mother was very insistent that the grandchildren should receive a one fourth share of the entire property; that she had made such statements in the presence of her husband and he had assented to that being done.

The appellant asserts that in order to meet the test of 'clear, definite, cogent and convincing evidence and beyond all legitimate controversy' such evidence must be free from suspicious circumstances, inconsistancy, contradictions and inherent improbabilities, and in this case the test has not been met.

We recognize what we believe has been the experience of lawyers generally when preparing wills for husbands and wives that as a rule they desire reciprocal wills in which they devise and bequeath their property to each other trusting to the survivor to make provisions for children or other objects of their bounty with no intention that the wills shall be mutual in the sense that neither will can be revoked without the consent of the other, or after the death of the other spouse but occasionally they do desire mutual wills which will have that effect. We think it was just such a situation that was presented to Mr. Ott when he heard these unlettered people explain what they had in mind and what they had agreed upon so that the grandchildren should have one fourth of their community property; that each of their children should have one fourth thereof; that the survivor should have a life estate in the community interest of the other; and in the event of remarriage of the survivor the life estate should terminate. This situation could not have been made known to Mr. Ott unless the parties had reached...