Gardner's Estate, In re, 38131

• Decision Date: 08 September 1966
• Docket Number: No. 38131,38131
• Court: Washington Supreme Court
• Parties: In the Matter Of The ESTATE of Maudene M. GARDNER, Deceased. Faye TYER, Appellant, v. G. Earl MILLER, Respondent.

Page 229

69 Wn.2d 229

417 P.2d 948

In the Matter Of The ESTATE of Maudene M. GARDNER, Deceased.

Faye TYER, Appellant, v. G. Earl MILLER, Respondent.

No. 38131.

Supreme Court of Washington, Department 2.

Sept. 8, 1966.

Rehearing Denied Nov. 10, 1966.

Raymond A. Reiser, Seattle, for appellant.

Stanley N. Kasperson, Seattle, for respondent.

LANGENBACH, Judge. ^*

This is a proceeding to establish a destroyed will and its contents. Faye Tyer and Isaiah Goodall petitioned to admit to probate a destroyed will and appoint Isaiah Goodall as executor; or, alternatively, for a judgment awarding Faye Tyer damages against G. Earl Miller for his appropriation of decedent's assets and the destruction of the will, thereby depriving her of a legacy. Mr. Miller petitioned for his appointment as administrator as the sole heir.

A pretrial order limited the issues to proof of the execution and contents of the destroyed will. ¹ Thereafter, the probate court denied the petition of Faye Tyer on grounds that she had failed to sustain the burden of proof of the contents of the will and its due execution, 'in that the witness who observed the decedent signing an instrument was unable to fix the time of the transaction, and the other witness could not fix the time and had no personal knowledge of the signing or acknowledgment of the instrument by either the deceased or the other witness.'

The court appointed Mr. Miller as administrator, and Faye Tyer has appealed.

Maudene Gardner, a widow 75 years of age, died April 7, 1963. Sometime during the latter part of 1959, she prepared a will of three pages in her own handwriting She had used another will as her guide. She showed the will to a man who was named therein as executor. He read the will to see that it conformed with the from of will he had furnished her. They then took it to the office of a savings and loan company and asked the secretary to witness her will. The deceased signed it in his presence; he signed it in her presence and then they took it to a teller's cage (20 to 35 feet away) where the teller signed as a witness. Neither of these witnesses read the will. The will was then placed in a long envelope, sealed and to the named executor for safekeeping. He took it to his home.

Thereafter the decedent resided in a nursing and rest home until her death.

On December 30, 1962, decedent's nephew (respondent) went to the home of the named executor and told him that the deceased had requested him to get the will and destroy it. The executor delivered the will to respondent who took it to his home and gave it to his wife. She 'scanned' the will looking for her own name. Failing to find her name, she gave it back to her husband who burned the will in the fireplace. The maker of the will was still alive at this time, but was not present. No proof was made or offered concerning the mental competency of the decedent at the time of the destruction of the will.

The named executor testified that he had read the will just before it was signed, and that it provided for a bequest of $500 to the University Christian Church, a bequest of $5 to respondent, the residue and remainder to appellant, and named him as executor with compensation.

Appellant called respondent's wife as the other witness to prove the contents of the destroyed will. She testified her husband had brought the will home and had given it to her; she 'scanned' it, noticing respondent's name and either $5 or $50 opposite it; she noticed her son's name with a similar amount opposite it; a church was named, but she could not remember any specified amount; and she saw appellant's name and 'personal effects.' She did not state that she saw or identified the signatures, whether there was an attestation clause or the word 'witness' on it. She then gave it to her husband who burned it in the fireplace. She had been examined prior to trial by deposition. In this she stated she saw her husband' name and an amount, it might have been $5 or $50. She saw the name of her son and the same amount. She saw the words 'University Christian Church' but not the amount opposite it. 'Q. Then the rest, residue and remainder to Mrs. Tyer (appellant)? A. I believe so.'

Appellant argued that she had sustained her burden of proving the execution and contents of the destroyed will, or alternatively, the probate court had general jurisdiction to award her damages in the event she failed to sustain her burden of proof. We do not have to consider appellant's latter contention, since we agree that she had sustained her burden of proving due execution and contents of the destroyed will.

Normally, proof of a will being destroyed prior to testatrix's death raises a rebuttable presumption of revocation. See, In re Robinson's Estate, 149 Wash. 307, 207 P. 1020 (1928); and In re Harris' Estate, 10 Wash. 555, 39 P. 148 (1895). In the case at bar, this presumption is rebutted by respondent's admission that he destroyed the will out of the presence of the testatrix in her lifetime. See, RCW 11.12.040. ²

In In re Wind's Estate, 27 Wash.2d 421, 178 P.2d 731, 173 A.L.R. 1276 (1947), the court held that a will to be effectively revoked by burning under RCW 11.12.040, the burning most be done at the testator's request and in his presence. This does not mean, however, that the ineffective revocation ipso facto makes the will admissible to probate regardless of the lost wills act. In re Kerckhof's Estate, 13 Wash.2d 469, 125 P.2d 284 (1942).

The material provisions of the lost wills act, RCW 11.20.070 are as follows:

No will shall be allowed to be proved as a lost or destroyed will unless it is proved to have been in existence at the time of the death of the testator, or is shown to have been destroyed, cancelled or mutilated in whole or in part as a result of actual or constructive fraud or in the course of an attempt to change the will in whole or in part, which attempt has failed, or as the result of a mistake of fact, nor unless its provisions are clearly and distinctly proved by at least two witnesses * * *.

Respondent's act of destroying the will under these circumstances was fraudulent within the statute. Where a will is destroyed without the knowledge or consent of the testator or testatrix, it is fraudulent as to him or her. See, Annot. 23 A.L.R.2d 382. In In re Wind's Estate, supra, 27 Wash.2d at 426, 178 P.2d at 734, the court held that a will wrongfully burned within RCW 11.12.040, 'was fraudulently destroyed because the destruction was unlawful and done to further the financial interests of respondent.' In the case at bar, respondent without a doubt was to benefit financially from the destruction of the will. He was the sole heir within the intestacy statute.

In In re Robinson's Estate, 149 Wash. 307, 310, 270 P. 1020 (1928), the court held that where the decedent had a right of access, but not actual access to her will, and the custodian (being benefited by the lost or destroyed will) argued that he had given the will to her and she subsequently destroyed the same, the custodian had the burden of proving that decedent destroyed the will. The court held that he failed to sustain that burden and affirmed the trial court holding: "(T)hat the said will was in existence at the time of the death of * * * (testatrix) or if it was not in existence, the same was fraudulently removed from her safety deposit box by * * * (the custodian) and wrongfully suppressed."

When the respondent went to the custodian of the will on December 30, 1962, he merely asked orally for the will for the purpose of destroying it. He tendered no signed statement or authorization from the testatrix to the custodian of the will for its surrender and delivery for eventual destruction. There was only the bare unsupported statement of respondent to that effect.

The net result of respondent's activities was to have the decedent die intestate and leave him as her sole heir. The respondent's wife lost all interest in the will when she did not see her name as a beneficiary therein. As his wife, she had a chance of benefiting with him from the proceeds of the estate. He was then the sole heir. No one will ever know whether the decedent told him to get the will and destroy it. Nor will it ever be known what was her mental status at that time. It is known that she died in a nursing home; that it had been bruited about that she needed a guardian for her affairs. It was admitted by respondent that the will was in existence up until the time of its deliberate destruction by him. Its destruction was for the sole purpose of making the respondent the sole beneficiary of her estate.

In some jurisdictions where a will is fraudulently destroyed, the will is presumed to have been legally drawn and executed. See, Preston v. Preston, 149 Md. 498, 132 A. 55 (1926); and Annot. 41 A.L.R.2d 393. At this time, however, we need not determine the effect of respondent's fraudulent conduct, as we hold the evidence established that the will was duly and legally executed.

As the standard to establish the execution of a will destroyed by interested parties, respondent relied on a statement made in In re Borrow, 123 Wash. 128, 130, 212 P. 149, 150 (1923):

The law requires great care and exactness in the proof of a written will even when the instrument itself is preserved and presented, and when the instrument is not presented, the least that can be required is that the evidence to establish its execution and contents must be clear and convincing.

The court, however, at 129, 212 P. at 150, said: 'we have no hesitancy in holding that appellant failed to establish that any will have ever, at any time, been made by the deceased.' Moreover, in In re Peters' Estate, 43 Wash.2d 846, 860, 264 P.2d 1109, 1117 (1953), the court determined the standard to be as...