Ganjian's Estate, In re, 35125

• Decision Date: 31 December 1959
• Docket Number: No. 35125,35125
• Citation: 55 Wn.2d 360,347 P.2d 891
• Parties: Matter of the ESTATE of Noemzar GANJIAN, Deceased. John O. GANJIAN, Appellant, v. Lillian GREGORY, Individually and as Executrix of the Estate of Noemzar Ganjian; Ruth Mellis; and Robert O. Ganjian, Respondents.
• Court: Washington Supreme Court

Page 360

55 Wn.2d 360

347 P.2d 891

Matter of the ESTATE of Noemzar GANJIAN, Deceased.

John O. GANJIAN, Appellant, v. Lillian GREGORY, Individually and as Executrix of the Estate

of Noemzar Ganjian; Ruth Mellis; and Robert O.

Ganjian, Respondents.

No. 35125.

Supreme Court of Washington, Department 1.

Dec. 31, 1959.

J. M. Jonsson, Seattle, B. R. Agor, Seattle, for appellant.

Dore, Cummings, Dubuar & Dore, Seattle, for respondents.

MALLERY, Judge.

On September 26, 1953, Noemzar Ganjian executed a will in which she left her estate to her husband or, on his prior death, to be divided equally among two sons, a daughter, and a granddaughter. This will was admitted to probate, and the granddaughter qualified as executrix. Subsequently, John O. Ganjian, one of the decedent's two sons, produced a paper purporting to be a later will, hereafter referred to as the 1958 will, and asked that it be substituted for the 1953 will. The 1958 will, after making small bequests to the other children and the granddaughter, left the bulk of the estate to John.

The trial court denied the requested substitution of the 1958 will upon the ground that it was not her will. John O. Ganjian appeals.

The 1958 will was signed on July 19. Mrs. Ganjian was then over seventy years of age and suffering from chronic lymphatic leukemia. She had been admitted to the hospital the day before. On the day in question, she was under heavy medication, and was receiving intravenous glucose injections. Her other children and granddaughter testified that she was in a partial coma and not able to comprehend her surroundings during most of the day. She had grown up in Armenia and still spoke Armenian within the family group. She was unable to read the 1958 will on the day it was signed. Moreover, it was never read to her verbatim, but John and his attorney paraphrased it for her in general terms. There were two clauses in it about which she concededly was never informed. The first conditioned a gift to her daughter-in-law upon her being married to John, and the second named his attorney as attorney for the estate. John, who spoke Armenian, excluded everyone else who understood it from the room when the 1958 will was being discussed with her. She was too weak to sign her name and merely put her 'X' upon the three pages of the 1958 will. The two witnesses to the 1958 will were a minister, whose church received a bequest of $1,000, which was not in the 1953 will, and the attorney who had been named as attorney for the estate.

The record shows a long history of intention on the part of Mrs. Ganjian to divide her property equally among her children and granddaughter. Her feelings toward all were equal and there was no showing of partiality toward John or any of the others. There is no evidence indicating a subsequent change of this feeling.

The appellant first objects to the trial court's finding that his mother possessed 'limited' testamentary capacity. We think, however, that, where the issue is whether or not the 1958 will was in fact her will, the extent of her testamentary capacity is not the determinative factor.

The appellant contends that only the two clauses which were not mentioned to his mother, rather than the whole will, should be declared invalid. This is put upon the doctrine of partial invalidity. The doctrine of partial invalidity has much to commend it when applied, in proper cases, to clauses in a will which cannot be enforced for various...