Estate of Price, In re, 32165-0-I

• Decision Date: 18 April 1994
• Docket Number: No. 32165-0-I,32165-0-I
• Citation: 73 Wn.App. 745,871 P.2d 1079
• Parties: In re the ESTATE OF Leland J. PRICE, Deceased. Ronald L. PRICE, Richard Price, Delores Cameron and Darrell Price, Appellants, v. Monica PRICE, Respondent.
• Court: Washington Court of Appeals

Page 745

73 Wn.App. 745

871 P.2d 1079

In re the ESTATE OF Leland J. PRICE, Deceased.

Ronald L. PRICE, Richard Price, Delores Cameron and Darrell

Price, Appellants, v. Monica PRICE, Respondent.

No. 32165-0-I.

Court of Appeals of Washington,

Division 1.

April 18, 1994.

Paul W. Houser, Jr., Dobson, Houser & Dobson, Renton, for appellants.

Mary A. Vance, Seattle, for respondent.

KENNEDY, Judge.

Leland Price's adult children of his first marriage, Ronald Price, Richard Price, Delores Cameron and Darrell Price (appellants), appeal two orders granting summary judgment to Leland's second wife, Monica Price. The first order held that Leland's will was validly executed. The second order determined that the will should be interpreted as devising to Monica a fee simple on condition subsequent in the Price home in Renton. Appellants contend that the will was invalidly witnessed, and that material issues of fact remain concerning whether the will grants Monica a fee simple on condition subsequent or a life estate defeasible upon her remarriage. We conclude that the will was validly witnessed, and that the trial court properly concluded that Monica received a fee simple on condition subsequent. Accordingly, we affirm.

FACTS

Leland Price died September 22, 1991. He was survived by his second wife Monica Price and the appellants, his children from his first marriage. Monica has three adult children from her first marriage. Leland and Monica had no children between them. They were married on March 2, 1974, and remained married and living together continuously for 18 years prior to Leland's death.

Four years before the death of his first wife, Leland constructed a house in Renton. The entire family helped build the home, which was paid for with cash. Ronald Price refers to the house as a "family project." The house, valued at $275,000, constitutes the bulk of Leland's $383,000 estate.

Leland executed the will at issue on September 30, 1990. Monica executed a mutual will at the same time, with provisions substantially identical to those of Leland's will. Leland wrote the wills himself, without the aid of an attorney. The record reflects that Leann Wilson typed the wills, working from Leland's handwritten notes.

The first paragraph of the will directs that all debts and funeral expenses be paid by the executrix or executor. The third paragraph states:

All the rest, residue and remainder of my property, of which I may die seized or possessed, or to which I may in any manner be entitled at the time of my death, I give, bequeath and devise to my wife MONICA PRICE.

Clerk's Papers, at 3. The fourth paragraph divides the estate between the appellants in the event that Monica does not survive Leland by a period greater than 4 months. ¹

The remaining paragraphs have created the confusion in this case. The fifth paragraph gives the executrix

full power to sell and convey any or all of the real estate or personal property belonging to [the] estate without an order of any court for that purpose and without notice or confirmation, and at such price and upon said terms and conditions as to her or him may seem just[.]

Clerk's Papers, at 3. It also provides that

all rents, issues and profits derived therefrom as well as the proceeds arising from the sale thereof, and all increment of the same, shall be held and managed by my said executrix or executor as trustee[.]

Clerk's Papers, at 4.

The sixth paragraph memorializes the joint execution of mutual wills by Leland and Monica, making the wills irrevocable without the express agreement of the other spouse. The seventh paragraph reads:

If either myself (Leland Price) or my wife (Monica Price) remarry he or she can't live in the home place. They both agree that in such event they will be cut out of the will. All cash in the bank will go to the surviving husband or wife. ²

Clerk's Papers, at 4. The last numbered paragraph, the ninth, names Monica as the preferred executrix and Ronald Price as the alternate.

All of the above-described provisions appear on the first two pages of the will. The final page, page three, bears the title "Attesting Clause and Affidavit of Sworn Witness." Leland's will was executed at the home of Leann L. and Nicolas P. Wilson. Both Nicolas and Leann signed page three of the will, Nicolas as a witness and Leann as notary.

Ken Molotte also signed this third page. Molotte was not, however, present at the Wilson's home when Leland and the Wilsons signed the document. Molotte had not signed the attestation page by the time that Leann Wilson notarized the will. Leland approached Molotte after that occasion and asked him to witness the will. Leland did not present the entire will to Molotte. Rather, he showed Molotte only the last page, that is, the "Attestation Clause and Affidavit of Attesting Witness" page. Molotte signed that page in the presence of only Leland.

On November 22, 1991, two of the appellants petitioned for appointment as co-administrators of the estate. They believed that the will was improperly witnessed because Molotte signed the attestation after the Wilsons did, and because Leann did not sign as an attesting witness, leaving only one witness attesting the will.

On January 31, 1992, both Leann and Nicolas Wilson signed declarations stating that: (1) they both signed Leland's will at his request; (2) they knew Leland and he appeared to possess testamentary capacity, to be of sound mind, and to be free of undue influence or duress; and (3) that when they "witnessed" the execution of the will they themselves were of legal age, sound mind and were free of any criminal convictions that would disqualify them from testifying as witnesses. Leann made a second declaration on February 18, 1992, stating that she was never asked to sign the will as an attesting witness, and that she did not sign the will thinking that she was a witness. On February 25, 1992, Judge Lasnik entered a partial summary judgment stating that Leland's will was validly executed.

On June 30, 1992, appellants petitioned for an order construing the will. They argued that Monica should be prevented from selling the Price home, as Leland had wanted the house to pass to his children. They claimed that Leland's will was ambiguous, and argued that extrinsic evidence established his intent as regards the house.

To support their contention, appellants offered two declarations, a third one by Leann Wilson, and one by Molotte. In this third declaration, Leann stated that she overheard Leland talking to Monica on the day he executed the will:

Leland told Monica that the terms of his Will provided that she received all the money. That she could live in his house until she died unless she got remarried and then the house would go to his children....

....

I clearly recall Leland telling Monica that she could not sell the house and upon her death or remarriage that the house would go to his son, Ronald, whom he said he wanted to have the home. After he told this to Monica Price she said that she understood that that was what he wanted.

Clerk's Papers, at 62-63.

Molotte's declaration states that Leland approached Molotte before executing the 1990 will, saying that he wanted to change his prior will. According to Molotte, Leland knew that Monica planned on moving back to North Dakota if Leland died first. Leland said that he wanted to change his will so that Monica could live in the Price family home as long as she wanted, and use the cash in the bank; but if she decided to sell the home, the proceeds were to be split between her and the appellants.

Judge Tuai denied the appellants' petition and entered a summary judgment declaring that Monica received a fee simple on condition subsequent in the Price home. This timely appeal followed.

DISCUSSION

This is an appeal from a summary judgment. The ordinary standard of review for summary judgments applies. Marincovich v. Tarabochia, 114 Wash.2d 271, 274, 787 P.2d 562 (1990).

I Will Execution

Appellants argue that Leland's will was not properly executed because Leann Wilson signed as a notary, not as an attesting witness.

No Washington case directly addresses whether a notary's signature can be treated as the signature of an attesting witness. However, the requirements for valid will execution have been reduced to a minimum in Washington. In re Estate of Chambers, 187 Wash. 417, 425, 60 P.2d 41 (1936). RCW 11.12.020 requires only that:

Every will shall be in writing signed by the testator ... and shall be attested by two or more competent witnesses, by subscribing their names to the will, or by signing an affidavit that complies with RCW 11.20.020(2), while in the presence of the testator and at the testator's direction or request[.]

RCW 11.20.020(2) states:

any or all of the attesting witnesses to a will may, at the request of the testator ... make an affidavit before any person authorized to administer oaths, stating such facts as they would be required to testify to in court to prove such will, which affidavit may be written on the will or may be attached to the will or to a photographic copy of the will.

A witness as described by RCW 11.12.020 is one who has personal knowledge of the fact that the will was signed by the testator. See In re Estate of Cronquist, 45 Wash.2d 344, 345, 274 P.2d 585 (1954). The attestation by that witness certifies that the testator's signature was valid. Estate of Cronquist, at 345, 274 P.2d 585.

Washington does not require formal words of attestation in a will "if competent witnesses present before the court testify that they subscribed their names to a document in the presence of the testator, and to facts which amount in law to an attestation" (Italics ours). Estate of Chambers, 187 Wash. at 423, 60 P.2d 41. In Chambers, three witnesses signed the will after the testator's signature. There was no attestation clause and no specific or formal oral request from the testator that these three...