Cairns v. Donahey

• Decision Date: 21 June 1910
• Parties: CAIRNS v. DONAHEY.
• Court: Washington Supreme Court

109 P. 334

59 Wash. 130

CAIRNS v. DONAHEY.

Supreme Court of Washington

June 21, 1910

Department 2. Appeal from Superior Court, Whitman County; E. H Sullivan, Judge.

In the matter of the estate of Rebecca A. Donahey, deceased. From an order removing J. W. Cairns as administrator, and appointing Harvey A. Donahey as executor, the administrator appeals. Appeal dismissed.

John Pattison, for appellant.

Hanna &amp Hanna, for respondent.

CROW J.

On June 6, 1908, J. W. Cairns filed his petition in the superior court of Whitman county for letters of administration upon the estate of Rebecca A. Donahey, deceased, alleging that, on June 2, 1908, she died intestate. With the petition he also filed a written request for his appointment, signed by E. T Trimble and H. A. Donahey, who were the sons and only heirs at law of the decedent. Letters were issued to Cairns, who qualified as administrator, filed an inventory, and published notice to creditors. Thereafter H. A. Donahey, one of the heirs of the deceased, filed his petition for the production and probate of her last will and testament, which he alleged was in the possession of the administrator. After citation the administrator produced the alleged will and filed his amended answer, in which he alleged: 'That on the 8th day of June, 1908, upon the written request of E. T. Trimble and H. A. Donahey, he, the said H. A. Donahey, being the identical person who petitioned the court for the probate of said will, said J. W. Cairns filed herein his petition for his appointment as administrator of the estate of said Rebecca A. Donahey, deceased; that after due and legal notice being given of said petition for appointment of said administrator the above court, on the 20th day of June, 1908, duly and regularly appointed said J. W. Cairns the administrator of said estate of Rebecca A. Donahey, deceased; that said J. W. Cairns on the 30th day of June, 1908, duly filed his bond as said administrator, and the same was on said day duly approved; that on the 22d day of July, 1908, said J. W. Cairns duly qualified as said administrator, and letters of administration were on said day duly issued to said J. W. Cairns, and ever since said time said J. W. Cairns had been and now is the duly qualified and acting administrator of said estate. Said J. W. Cairns objects to the probate of said purported will and to the revocation of his appointment as administrator of said estate for the following reasons: That on the ___ day of May, 1908, at the residence of said Rebecca A. Donahey, near the city of Colfax, Whitman county, state of Washington, said Rebecca A. Donahey being then in feeble health physically, but being in the possession of all of her natural faculties and of sound mind and fully understanding the nature of her acts, requested J. W. Cairns of Colfax, Washington, now administrator herein, to procure the will that she had executed on the 19th day of May, 1905, being the will now on file herein, and then and there stated to the said J. W. Cairns that she desired said will so that she might destroy, burn, and revoke the same; said J. W. Cairns then and there procured a paper resembling said will and stated to said Rebecca A. Donahey, and said J. W. Cairns placed said paper, which he had represented to the said Rebecca A. Donahey was her said last will, in the stove at the residence of and in the presence of said Rebecca A. Donahey, and burned and destroyed the same, and said J. W. Cairns then and there stated to the said Rebecca A. Donahey that he had burned and destroyed said will; said Rebecca A. Donahey believed the said statements of said J. W. Cairns, and stated that she was now satisfied that said will was burned, destroyed and revoked.'

The will by its terms devised $1 to E. T. Trimble, and the remainder of the estate to H. A. Donahey who was named as executor. E. T. Trimble as an heir at law filed an answer objecting to the probate of the will. To his answer and the amended answer of the administrator separate demurrers were sustained and defaults were afterwards entered. Thereafter on proof taken the...