Campbell's Estate, In re
| Decision Date | 20 October 1955 |
| Docket Number | No. 33335,33335 |
| Citation | 288 P.2d 852,47 Wn.2d 610 |
| Court | Washington Supreme Court |
| Parties | In re Matter of the ESTATE of Daisy I. CAMPBELL, Deceased. Evans E. COLLIAS, Appellant, v. Gunda J. BERGE, Coexecutrix, and Seattle First National Bank, Coadministrator w/w/a, Respondents. |
David Bailey Smith, Stuart K. Nielsen, Seattle, for appellant.
Orville C. Hatch, Jr., F. Robert Lee, Seattle, for respondents.
In this probate proceeding, an order was entered admitting to probate one will and a codicil of such will, and rejecting a second will. This appeal is from that part of the order rejecting the second will.
The will which was admitted to probate was executed by Mrs. Daisy Campbell on March 31, 1952. She was then eight-one years of age. In this will, which was prepared by her attorneys, she left her estate in equal shares to her sister and brother-in-law. The estate consisted of $240,000 in personal property and cash.
On December 22, 1952, Mrs. Campbell went to the office of her attorneys and stated that two men had persuaded her to sign a document the day before. She was concerned because she feared the document she had signed might have been a will. Her attorneys therefore prepared, and she then signed a codicil republishing the will of March 31, 1952, with one amendment as to executors.
On January 22, 1953, pursuant to a petition filed by a nephew, and after hearing, Mrs. Campbell was adjudged incompetent and unable to handle her financial affairs. Seattle-First National Bank was appointed guardian of her estate.
On January 1, 1955, Mrs. Campbell died at Hagerstown Maryland. Gunda J. Berge and Mandus C. Berge, named coexecutrix and executor in the codicil of December 22, 1952, petitioned for the probate of the codicil and the will of March 31, 1952. This petition was filed on January 17, 1955, and the matter was set for hearing on January 28, 1955.
On the latter date, Evans E. Collias, the appellant here, filed a will purportedly executed n January 2, 1953, and petitioned for its probate. In this will, decedent's entire estate, except for $22,500, was left to Collias. He was also named executor.
The two probate proceedings were then consolidated for hearing on February 4, 1955. At this hearing, evidence was first received concerning the due execution of the first will and codicil. Collias did not participate in this part of the hearing, although he was afforded an opportunity to do so.
Appellant then proceeded to introduce evidence in support of his petition to probate the second will. Respondents were permitted, over objection, to cross-examine appellant's witnesses, and to submit testimony in opposition to appellant's petition. As before indicated, the hearing resulted in the entry of the order now under review, admitting to probate the first will and the codicil, and rejecting the second will.
On this appeal, appellant first contends that it was error to permit repondents to cross-examine witnesses produced in support of the second will, and to produce evidence in opposition thereto.
RCW 11.20.020, cf. Rem.Rev.Stat. § 1380, relating to applications for probate of wills, contemplates an ex parte proceeding without notice. In re Elliott's Estate, 22 Wash.2d 334, 338, 156 P.2d 427, 157 A.L.R. 1335. Generally speaking, therefore, an interested party, hostile to a will, should not be permitted to participate in the probate proceeding. He should proceed by way of a will contest, in the manner provided in RCW 11.24.010 et seq., cf. Rem.Rev.Stat. § 1385 et seq. In re Larson's Estate, 187 Wash. 183, 60 P.2d 19.
Under certain circumstances, however, a hearing upon a petition to probate a will may properly become an adversary proceeding. Where, as here, the court must choose between two or more wills before the court in consolidated hearings, action on each petition may depend upon the disposition made of the other. However valid an earlier will may be in other respects, it will be inoperative, and probate must be denied, if a later will is established. Defeat of the later will, offered for probate in consolidated proceedings, thus becomes necessary in order to obtain probate of the earlier one. Under such circumstances, adversary participation is clearly warranted. See In re Ney's Estate, 183 Wash. 503, 48 P.2d 924, where the same circumstances were present and the same procedure was followed.
Pleadings are not necessary in such a case. The issues are defined by the statutes which recite who may make a will and the requisites of a valid will. See RCW 11.12.010 and 11.12.020, cf. Rem.Supp.1943, § 1394, Rem.Rev.Stat. § 1395. The element of surprise is not present here, because the trial judge stated that he would entertain a motion for a continuance. No such motion was made.
We therefore hold that he trial court did not err in permitting respondents to cross-examine appellant's witnesses, and in producing evidence in opposition to the second will.
The remaining question is whether the trial court erred in rejecting the second will. The trial court rejected this will because of unexplained erasures and alterations in the instrument, and because the testamentary capacity of Mrs. Campbell on January 2, 1953, had not been sufficiently established.
Concerning the erasures and alterations, the following evidence is pertinent: The will of January 2, 1953, was partly printed and partly in the writing of appellant, the principal beneficiary. In paragraph III, where $10,000 is purportedly bequeathed to Ora Lightner and an equal amount to charity, the 'en' in the 'ten' in each case was written over something previously erased.
The testimonial clause of the will, with the blanks which were filled in by hand indicated by italics, reads as follows:
'I have hereunto set my hand and seal and publish and declare this as my last Will and Testament, on this 2nd day of January in the year of our Lord one thousand nine hundred and Fifty Three (1953).'
An expert witness testified that, in the written words designating the year, 'Fifty Three,' the last four letters of the 'Three' had been erased and changed. The word 'Fifty' and the 'T' of the 'Three' were written in the same ink as the body of the will, but '2nd,' 'January,' and 'hree (1953)' were written in a different ink.
On the cover of the will, which is the reverse of the last page, there is a printed phrase with blanks which were filled in by hand. There is a blank for the testatrix' name and a blank for the date. These blanks were filled in, respectively, as follows: 'Daisy I. Campbell' and 'Jan. 2, 1953.' The 'Jan.2' is written in a different ink than the name Daisy I. Campbell. The last numeral in the '1953' had been erased and the '3' written over.
In the attestation clause, the date was written in a different ink than the...
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