Campbell's Estate, In re

• Decision Date: 10 March 1955
• Docket Number: No. 33008,33008
• Citation: 46 Wn.2d 292,280 P.2d 686
• Parties: ESTATE of James A. CAMPBELL, Deceased. John W. DAY, as Executor, Appellant, v. Lurline Tate MAGUIRE, Respondent.
• Court: Washington Supreme Court

Page 292

46 Wn.2d 292

280 P.2d 686

ESTATE of James A. CAMPBELL, Deceased.

John W. DAY, as Executor, Appellant, v. Lurline Tate MAGUIRE, Respondent.

No. 33008.

Supreme Court of Washington, Department 1.

March 10, 1955.

Rehearing Denied April 15, 1955.

Barker & Day, E. P. Whiting, Seattle, for appellant

Lenihan & Ivers, Seattle, for respondent.

OTT, Justice.

This appeal is from an order of clarification entered by a probate court.

James A. Campbell died in Seattle July 28, 1953. Jury 30, 1953, two days after his death, a nonintervention will dated October 31, 1951, purporting to be the last will of the decedent, was presented to Judge Lloyd Shorett, proved, and admitted to probate, and John W. Day, named therein as executor, was appointed and qualified.

July 31, 1953, one day after the above will had been admitted to probate, another non-intervention will dated January 15, 1953, purporting to be the last will of the decedent, was presented to Judge Donald A. McDonald, proved, and admitted to probate, and Lurline Tate Maguire, named therein as executrix, was appointed and qualified.

The proceedings with reference to the second will were filed with the county clerk in cause No. 129575, being the identical file which contained the will dated October 31, 1951, and the orders pertaining to it. No notice was given of the presentation of either will.

August 5, 1953, Lurline Tate Maguire caused to be served upon John W. Day a petition for the revocation of his letters testamentary. A hearing was had upon the petition before Judge McDonald, and the petition was denied October 20, 1953. No reason was given by the court for denying the petition.

March 29, 1954, Lurline Tate Maguire filed another petition, setting forth the confusion the apparent dual control of the executors under the two wills had presented, and alleging that she was the executrix under the last will and testament of the decedent, which will specifically revoked all prior wills. The prayer of the petition asked for clarification and proper instructions.

April 20, 1954 a hearing was had before Judge Harold Seering. The matter was taken under advisement and a written memorandum opinion filed. May 11, 1954, Judge Seering signed an order overruling the demurrer and denying the motion to strike, revoking the letters testamentary of John W. Day, and establishing the will of January 15, 1953, as the last will and testament of the decedent.

The executor John W. Day has appealed to this court from the order of clarification, alleging (1) that the order entered by Judge Seering was an illegal order for the reason that it decided the petition upon its merits, when the only issue before the court was a motion to strike and a demurrer; (2) that the appellant had no opportunity to be heard upon the merits, and (3) that the matter as to the revocation of the letters testamentary of John W. Day was res judicata for the reason that the order of Judge McDonald, entered October 20, 1953, had not been appealed from and the time for appeal had expired.

Respondent has moved to dismiss the appeal for the reason that John W. Day is an executor and has no appealable interest, and in the alternative, contends that, in the event the appeal is not dismissed, the trial court should be affirmed for the following reasons: (1) that the law does not require any notice of presentation of a will; (2) that, when the court found the will dated January 15, 1953, to be the last will and testament of the decedent, the order admitting that will to probate automatically nullified any previous order concerning the probate of any prior will, and (3) that the superior court has inherent power to make any order in a probate proceeding consistent with the law.

The probate code provides substantially as follows:

RCW 11.20.020 [cf. Rem.Rev.Stat. § 1380]: When a will is presented; the court may immediately hear proof and admit it to probate. Such order shall be conclusive as against all the world, except in the event of a contest of the will.

RCW 11.16.020 [cf. Rem.Rev.Stat. § 1589]: Courts shall have full and ample power and authority to administer and settle all estates. When, under any circumstances, the law is inapplicable or insufficient or doubtful, the court shall nevertheless have full power and authority to proceed in any manner which to the court seems right and proper.

RCW 11.12.230 [cf. Rem.Rev.Stat. § 1415]: All courts concerned in the execution of last wills shall have due regard to the direction of the will and the true intent and meaning of the testator.

The following legal principles have been well established by this court:

(1) To give effect to a testator's will, the document must first be admitted, and, where the testator has made more than one will, the last will is the one which must be given effect as the final expression of the testator's wishes.

(2) The offer of the later will does not constitute a contest of a prior will, within the meaning of our probate code.

(3) A court of probate has inherent authority at any time, while an estate is still open, to admit to probate a later will than that theretofore probated.

(4) A former will may meet all the formal and statutory requirements necessary to make it a valid will when executed, but yet may cease to have any operative effect simply because it has been supplanted by a later will.

(5) So long as the court retains its control over the assets of an estate, it may vacate an earlier order rendered ex parte, if the necessities of the case demand that previous orders be vacated or revised in order to effect justice.

See In re Elliott's Estate, 1945, 22 Wash.2d 334, 156 P.2d 427, 157 A.L.R. 1335, and cases cited; In re Witte's Estate, 1946, 25 Wash.2d 487, 495, 171 P.2d 183; In re Gherra's Estate, 1954, 44 Wash.2d 277, 284, 267 P.2d 91.

We must first determine the legal effect of the order of July 31, 1953,...