Dean v. Jordan

Decision Date12 May 1938
Docket Number26885.
Citation194 Wash. 661,79 P.2d 331
PartiesDEAN et al. v. JORDAN.
CourtWashington Supreme Court

Department 1.

Appeal from Superior Court, King County; Robert M. Jones, Judge.

Will contest by William H. Dean and others against Edith M Jordan, administratrix with the will annexed of the estate of Orilla Dean, deceased, to contest the will of Orilla Dean deceased. From a judgment upholding the will and dismissing the contest proceeding, the contestants appeal.

Affirmed.

Todd Holman & Sprague and Lowell P. Mickelwait, all of Seattle, for appellants.

Robert F. Sandall, of Seattle, for respondent.

STEINERT Chief Justice.

This is a will contest based upon alleged mental incapacity of the testatrix and alleged fraud and undue influence practiced by the beneficiary. The action was tried to the court and resulted in a judgment upholding the will and dismissing the contest proceedings. The contestants have appealed.

The testatrix, Orilla Dean, whose maiden name was Orilla Rogers, married Alvin H. Dean in 1909. She was then fifty-five years of age. Mr. Dean was at that time a widower with three grown children, William H. Dean and George S. Dean, two of the contestants herein, and Carrie Dean Smith, now deceased, wife of Miles R. Smith, and mother of Sybil Smith Wise and Phoebe Smith Redding, the other two contestants. At the time of her marriage, Mrs. Dean was possessed of a considerable estate, presumably inherited from her parents. Apparently Mr. Dean then had very little property. Mr. Dean's three children, being grown, never lived in the home of their father and his second wife, Orilla Dean.

Alvin H. Dean died in August, 1920, at Felida, in Clerk county, Wash. His estate, consisting of a five-acre farm and a small amount of personalty, was decreed by the court to be community property. After appraisement showing a total value of $2,662, the entire estate was awarded to the widow. The proceedings in that estate are in no way involved here, mention thereof being made only for the purpose of showing the character and value of Mr. Dean's property.

On November 20, 1920, Orilla Dean executed a nonintervention will wherein she bequeathed the sum of $2,000 to each of her two nieces, Ora A. Graham of Seattle, and Edith May Jordan, then of Tampa, Fla. The remainder of her estate she devised and bequeathed to the children of her deceased husband. The will designated Miles R. Smith, husband of Carrie E. Smith, and father of two of the contestants above named, as executor. Carrie E. Smith died about the year 1932. Ora A. Graham, one of the nieces above mentioned, is the person against whom are made the charges set forth in contestants' petition in this proceeding.

Shortly after the execution of her will, Mrs. Dean delivered it into the custody of Miles R. Smith. At about the same time she also delivered to Vancouver National Bank certain securities owned by her, principally United States government bonds, of the aggregate par value of $16,979.68; in the list accompanying the securities, Mr. Smith was named as trustee, or agent, of the owner.

During this period of time, Mrs. Dean, who was then about sixty-six years of age and grief-stricken over the death of her husband, felt very lonely, depressed, and nervous. She wanted to make her home with Mr. and Mrs. Smith at Vancouver, where she was then staying, but they were either unable, or else unwilling, to have her do so permanently. At any rate, they wrote to Mrs. Graham, the niece at Seattle, asking her to come to Vancouver and get her aunt. Within a few weeks, or at most a few months, after November 20, 1920, Mrs. Dean, accompanied by her niece, left Vancouver and went to Seattle.

Unfortunately, Mrs. Dean's condition did not improve after going to live with Mrs. Graham. She became more nervous, depressed, and melancholy, and seems to have become obsessed with the idea that she had no money, but only 'pieces of paper,' as she expressed it, although, as already stated, she had considerable liquid assets. There is also a suggestion in the record that she developed suicidal tendencies. The situation became so grave that on February 16, 1921, upon the petition of Mrs. Graham's husband, Mrs. Dean was adjudged insane and was committed to the Western State Hospital at Steilacoom. The record in that cause shows that the type of insanity with which she was afflicted was melancholia.

In May, 1921, Ora A. Graham, upon her petition, was appointed guardian of the person and estate of Mrs. Dean. The estate was subsequently appraised at $16,242.90. Shortly thereafter, at Mrs. Graham's request, Mr. Smith forwarded to her all the securities which had theretofore been held by him as trustee for Mrs. Dean and kept in the Vancouver bank. In 1922, Mr. Smith, at the instance of Mrs. Graham, forwarded to her the will which Mrs. Dean had delivered to him in 1920. Before doing so, however, he had the will recorded in the office of the county auditor of Clark county.

Mrs. Dean remained in the hospital at Steilacoom for about six weeks and then was paroled and taken to a private home in Seattle. This was done as an experiment, in the hope that under domestic surroundings Mrs. Dean would improve. However, the experiment did not result satisfactorily, for Mrs. Dean gave unmistakable signs of being irrational, and it was not safe for her to be at large. Upon the advice of a physician, she was taken back to Steilacoom on June 9, 1922. A few weeks later, however, she was again paroled and was then taken to a sanitarium in Puyallup where she was cared for at a monthly charge of $150. In September of the same year, the Western State Hospital discharged her as improved. She remained at the sanitarium in Puyallup for almost two years, during which time Mrs. Graham visited her at frequent intervals. While at the sanitarium Mrs. Dean improved to some extent, both physically and mentally.

In 1924 she was taken to Meridian Sanitarium, which is an old ladies' home in Seattle. There she remained until 1931. This change was made in order to reduce the amount of expense and also to enable her to be nearer to Mrs. Graham. The testimony of all the witnesses who were in a position to observe Mrs. Dean was to the effect that during this period of seven years she made a decided improvement and became quite rational, although, because of her age, she was very feeble. However, there was never any judicial proceeding in which it was decreed or declared that Mrs. Dean's sanity had been restored.

It appears from the record that Mrs. Dean, from the time that she first came to Seattle, had the desire to live with Mrs. Graham and on repeated occasions begged to be taken to the latter's home. Accordingly, in 1931, Mrs. Dean was removed to Mrs. Graham's residence, where she lived until her death in 1936. It is without dispute that, while there, she received every attention possible and was made comfortable in every way. It is also clear from the evidence that there was a strong bond of attachment between the aunt and her niece.

On September 20, 1933, Mrs. Dean, who was then seventy-eight years of age, executed the will which is now contested. In that will, she revoked her former will, made Mrs. Graham her sole beneficiary, and also named her as executrix to act without bond or intervention of court. The circumstances under which this last will was prepared and executed form the basis of this contest.

Owing to her advanced age and feebleness and the grief occasioned by the loss of her husband, which either directly caused her subsequent affliction or at least greatly contributed to it, Mrs. Dean led a rather secluded life in Mrs. Graham's home. Although she was permitted to do as she liked at all times, she preferred to sit quietly in the house and spend her time reading. Visitors called from time to time, but inasumuch as she was reserved by nature and also hard of hearing, it was difficult to carry on any extended conversation with her. She spent some of her time in writing letters, several of which, appearing as exhibits in the record, were written between 1931 and 1933 to a relative residing in Wisconsin. The trial court considered these letters as the strongest bit of evidence produced by respondent, indicating to the court not only a reasonable clearness of intellect on the part of Mrs. Dean, but also a very deep appreciation of what her niece had done for her.

During the last year of her life, and while residing at the home of her niece, Mrs. Dean spent most of her time in the upper porion of the house. This was because it was difficult for her to go up and down stairs; on one occasion she had fallen, and it was thought that she might injure herself if she should use the stairway.

It appears from the evidence that shortly Before the will in contest was executed Mrs. Graham consulted her own attorney and requested him to draw a will for Mrs. Dean with Mrs. Graham as the sole beneficiary. This, however, seems to have followed a suggestion made by the attorney himself that Mrs. Dean should have a will drawn. Mrs. Dean herself apparently had no attorney in Seattle.

The attorney did not at any time call on Mrs. Dean personally concerning the will, but drew it according to Mrs. Graham's directions. Thereafter, the will was executed Before two neighbor ladies acting as witnesses, Mrs. Graham also being present at the time. Although the will was not read aloud to Mrs. Dean in the presence of the witnesses, she was asked at the time whether it expressed her desire as to how she wanted her property to go, and she emphatically replied that it did . It also appears that the will lay on Mrs. Dean's dresser for some time Before and after its execution.

Owing to the fact that Mrs. Graham, the niece, died a...

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    ...in and of themselves, raise suspicion or concern requiring countervailing evidence by the proponent of the will. Dean v. Jordan, 194 Wash. 661, 671–72, 79 P.2d 331 (1938), which is often relied upon as the earliest formulation of circumstances giving rise to concern, and their effect on the......
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