Cummings v. Sherman

• Court: Washington Supreme Court
• Writing for the Court: SIMPSON, Justice.
• Citation: Cummings v. Sherman, 132 P.2d 998, 16 Wn.2d 88 (Wash. 1943)
• Decision Date: 06 January 1943
• Docket Number: 28740.
• Parties: CUMMINGS v. SHERMAN et al.

132 P.2d 998

16 Wn.2d 88

CUMMINGS v. SHERMAN et al.

No. 28740.

Supreme Court of Washington

January 6, 1943

Department 2. Allenberg Sherman, executrix of the estate Allenberg Sherman, executrix of the estate of Phoebe Shinn, deceased and others, to obtain an interest in the estate of the deceased wherein Frank P. Shinn and Fred E. Umbach filed a cross-complaint. From a decree in favor of the plaintiff and cross-complainants, Ruth Allenberg Sherman, executrix, and others appeal.

Affirmed.

Appeal from Superior Court, Spokane County; Chas W. greenough, judge.

Joseph J. Lavin and Graves, Kizer & Graves, all of Spokane, for appellants.

John B White and T. T. Grant, both of Spokane, for respondents.

SIMPSON Justice.

This action was instituted in the superior court of Spokane county, in which action respondent Cummings, as plaintiff, and respondents Shinn and Umbach, as cross-complainants, sought to obtain an interest in the estate of Phoebe Shinn, deceased. Recovery was predicated in the complaint and cross-complaint upon the allegations that Homer J. Shinn and Phoebe Shinn, husband and wife, had made mutual identical and reciprocal wills by the terms of which respondents were entitled to receive certain interests in the estate left by Mr. and Mrs. Shinn.

The case tried to the court resulted in the entry of a decree awarding to respondents the interest claimed.

Appellants, in appealing from the decree, make many assignments of error which will be discussed as we proceed.

The following facts are not in dispute: Homer J. Shinn and Phoebe Shinn were husband and wife for many years prior to April 30, 1931, at which time they executed mutual wills disposing of their community holdings which consisted of real and personal property. The wills were alike in all essential details.

The will of Homer J. Shinn contained the following provisions:

'Second: At the time of the execution of this my last will, my wife, Phoebe Shinn, is executing a similar will in which she provides for payment of the same legacies as are herein set forth. Should my wife predecease me and thereby provide for the payment of these legacies, then, and in that event such payment out of her estate shall be deemed a full payment and satisfaction of the above and foregoing legacies, and no payment of any such legacies shall be made hereunder.

'Third: In the event that may beloved wife, Phoebe Shinn, survives me, then and in that event I do give, devise and bequeath to my said wife, Phoebe Shinn, the whole of the residue and remainder of my estate, of whatever the same may consist, either real, personal or mixed, and wheresoever the same may be situate, with full and exclusive right of disposition of the same.

'Fourth: In the event my wife, Phoebe Shinn, does not survive me, then and in that event, her share of our community estate, by the terms of her will, subject only to the payment of debts, expenses and legacies, passes to me and I do give, devise and bequeath an undivided one-half of our estate remaining at the time of my death, of whatever the same may consist, either real, personal or mixed, and wheresoever the same may be situate, unto my said trustee, Spokane and Eastern Trust Company, a corporation, of Spokane, Washington, to be held by it in trust for a period ending five (5) years from the date of my death, subject to the provisions of this will, for the following named persons, to-wit: for Ruth Allenberg Sherman; for Mary Page Sherman, daughter of Ruth Allenberg Sherman; and for Jack D. Allenberg; share and share alike.

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'Sixth: Similarly, in the event my said wife fails to survive me and I thereby become the recipient, through her will, of the whole of our community estate, subject only to the payment of debts, expenses and legacies, then and in such event the remaining one-half of said estate in my hands and under my control at the time of my death not heretofore disposed of, I do give, devise and bequeath unto the Spokane and Eastern Trust Company, a corporation, of Spokane, Washington, to be by it held in trust on the terms hereinafter stated for the benefit of the following named persons, towit: to my nephew, Frank P. Shinn, an undivided one-half thereof; to my nephew, Van Cummings, an undivided one-fourth thereof; and to my faithful friend, Fred E. Umbach, an undivided one-fourth thereof.

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'Fourteenth: My wife and I are each executing our wills at this time and these wills are substantially identical in their provisions. All of the property that we possess is community property, and each of us is agreed that the survivor is to have the whole of our said community property, save only for the legacies provided in Section First of this will, without restriction upon his, or her, disposition thereof during his, or her, lifetime, and the legacies herein provided to take effect upon my death shall include only such property as I may have at the time of my death.'

The will of Phoebe Shinn made like provisions relative to her interest in the joint property and that which she might acquire through the death of her husband.

Homer J. Shinn died July 9th, 1931, and his will was admitted to probate July 16th, 1931. Phoebe Shinn acted as executrix of the estate, which was closed March 27th, 1936. The final decree recited that all legacies, costs, taxes and costs of administration had been paid, and then provided 'that Phoebe Shinn is entitled to receive and there is disbursed to her the entire residue of said estate.'

October 11, 1934, Phoebe Shinn executed another will revoking all her former wills. In this will she did not mention respondents in any way. Mrs. Shinn died October 23, 1940, and her will of October 11, 1934, was admitted to probate October 25, 1940.

It is respondents' contention that Homer J. Shinn and Phoebe Shinn in 1931 entered into an oral agreement to make mutual wills which would include provisions whereby their property should be finally distributed so that respondents and certain relatives of Mrs. Shinn would receive portions of the community estate and that in compliance with the agreement Mr. and Mrs. Shinn made their wills of April 30, 1931. Further, that Phoebe Shinn took her husband's estate subject ot the provision that after her death the devisees named in his will, respondents here, should receive the portion of his estate mentioned in paragraph six of his will.

A comprehensive discussion of this subject was recently made by this court in Allen v. Dillard, Wash., 129 P.2d 813, 817. In that case it was stated: 'Contracts to make mutual wills are recognized under our law as valid and, when sufficient facts are proven by competent evidence, such contracts may be specifically enforced. Prince v. Prince, 64 Wash. 552, 117 P. 255; In re Fischer's Estate, 196 Wash. 41, 81 P.2d 836. In principle, such contracts bear great similarity to agreements to devise or bequeath property in return for services to be rendered to the testator, or for some similar consideration moving to him. If there has been no attempted revocation by either party during the lifetime of both, a matter which will be discussed later, courts generally will enforce such contracts, if a valid agreement is proven, and it is the general rule that a party or a beneficiary to such a contract may maintain a suit for specific performance or some other appropriate relief. Because, however, of the great opportunity for fraud, and because of reluctance on the part of courts to render ineffective a subsequent will of a testator, the contract to make mutual wills must be established by clear and convincing evidence.'

Accord: McCullough v. McCollough, 153 Wash. 625, 280 P. 70.

The question first to be decided is whether or not the testimony introduced in this case was sufficient to prove the making of the oral contract under the rule to which we have just referred.

The proof of the oral agreement was supplied by Fred J. Cunningham, a member of the Spokane bar. Mr. Cunningham stated that he drew the wills in 1931 at the request of Mr. and Mrs. Shinn. His testimony relative to the oral agreement is as follows:

'Q. Now, the first time that they consulted you together, state what the conversation was, if any was had between you and them, when they were both there, in regard to executing wills, or whatever the nature of it was?

'The Witness: They came in by appointment, and Mr. Shinn stated that they had now reached an agreement as to making wills, or the substance of that statement, and he asked that I explain to Mrs. Shinn the difference between mutual wills and individual wills, which I attempted to do.

'By Mr. Grant: Q. State what you said to them in response to that question. A. As I recall, I stated that if they wanted to deal with their own share, each one's own share of the community property, they could make individual wills which could be changed at any time they wanted to, up until their death. If they wanted to deal with their community property by some agreement between them as to the character of their wills, and they entered into such wills, then when one of the parties died and that will was probated, their rights became fixed and the survivor could not change the will, at his option, in any way to violate their agreement. Then, as I recall, I asked Mr. Shinn what the substance of their agreement was as to their wills, and he said that they wanted to make identical wills in which each one would make the other the executor or the executrix, as the case might be, and that they wanted these wills to cover their entire community property. They stated that they wanted to give some cash bequests in each of these wills, and that if these bequests--I will put it this way--that these bequests should be...