Gordon v. Seattle-First Nat. Bank

Decision Date28 January 1957
Docket NumberSEATTLE-FIRST,No. 33863,33863
Citation306 P.2d 739,49 Wn.2d 728
PartiesAlex I. GORDON, Individually, and as Administrator of the Estate of Mabel C. Gordon, deceased, Plaintiff and Relator, v.NATIONAL BANK, a corporation; The Administrator With Will Annexed and Morris Preston, Defendants, The Superior Court of the State of Washington for King County, Honorable Donald A. McDonald, Judge, Respondent.
CourtWashington Supreme Court

Edwards E. Merges, Seattle, for appellant.

Hay & Hamlin, Seattle, for respondent.

SCHWELLENBACH, Justice.

Mabel C. Gordon died in Seattle on March 21, 1956. March 27, 1956, Alex I. Gordon, her surviving spouse, was appointed administrator of her estate. He thereafter qualified by taking oath and giving bond.

April 10, 1956, there was filed in the same probate cause, by Morris Preston, a brother of decedent, a petition for probate of Mrs. Gordon's will. The petition prayed that the will be admitted to probate; that Seattle-First National Bank be appointed administrator with will annexed; and that the letters of administration theretofore issued to Mr. Gordon be revoked.

April 27, 1956, Alex I. Gordon filed objections to the admission of the will to probate. Paragraph 6 thereof alleged that at the time of the execution of the purported will, Mrs. Gordon was mentally and physically incapable of executing a valid will. Paragraph 7 alleged that, at said time, she was unduly influenced by her brother. He prayed that the petition for probate be denied, but that, in the event the purported will be admitted to probate he, as the surviving spouse, be appointed executor by preference.

April 30, 1956, the petitioner for probate of the will moved to strike Paragraphs 6 and 7 of the objections. May 17, 1956, the court denied the motion to strike. May 28, 1956, the petitioner filed his answer to the objections of Mr. Gordon, specifically denying paragraphs 6 and 7 thereof.

June 20, 1956, the court entered the following order:

'In The Superior Court of the State of Washington for King County

'In the Matter of the Estate of Mabel C. Gordon, Deceased}

Order Admitting Will to Probate

'The above entitled proceeding, having come on regularly for hearing before the undersigned Judge of said Court on June 4, 1956, on the petition for probate of Will filed herein by Morris Preston, the Objections to Granting of Letters Testamentary and Petition for Probate of Will filed herein by Alex I. Gordon and the Answer to Objections of Alex I. Gordon filed herein by Morris Preston, the petitioner appearing by David O. Hamlin of counsel for petitioner and the objector appearing by Edwards E. Merges of counsel for said objector, the objector having orally moved the Court for an Order setting this proceeding for a special hearing and for leave to present evidence respecting the allegations appearing in said objections, the Court having heard argument thereon and having denied said Motion and declining to receive any evidence on behalf of objector, the Court having thereafter admitted the depositions of Louis Ballenger and Inith Schell on direct written interrogatories in support of said Will, having certified the testimony of said witnesses and having considered the records and files herein, and being fully advised

'Finds that Mabel C. Gordon died testate on March 21, 1956, being at the time of her death a resident of King County, Washington, and leaving estate therein subject to administration in the proceeding; that said decedent duly executed her Last Will and Testament on the 20th day of April, 1954, at Glendale, California, in the presence of Louis Ballenger and Inith Schell, competent subscribing witnesses thereto; that said witnesses attested said document in the presence of each other and in the presence of the testatrix at her request; that said decedent, at the time of executing said document, was above the age of majority and of sound mind and not under duress, menace, fraud or undue influence, nor in any respect incompetent to execute the same; that Rachael Preston Cunningham, the Executrix named in said Will, and Ruth Lee Reaves, the alternate Executrix named therein, have each refused to serve as such and that their written refusals are on file herein; that Alex I. Gordon, the surviving spouse of decedent, has attacked the validity of said Will in his written objections on file herein, alleging that said testatrix was of unsound mind and under undue influence at the time of executing said Will, and is therefore not a fit and proper person to act as Administrator with Will Annexed herein; that Seattle-First National Bank is competent and qualified to act as such Administrator with Will Annexed. It is therefore

'Ordered, Adjudged and Decreed that said document filed in this Court on the 29th day of March, 1956, be and is hereby admitted to probate as the Last Will and Testament of Mabel C. Gordon, Deceased; that Seattle-First National Bank be and it is hereby appointed and confirmed as Administrator with Will Annexed herein, and is directed to file herein its oath as required by law and a bond in the sum of $1000; and it is further 'Ordered, Adjudged and Decreed that the Letters of Administration heretofore issued to Alex I. Gordon be and the same are hereby revoked, and said Alex I. Gordon is directed to account for, and deliver to his successor, all of the estate of said decedent.

'Done in Open Court this 20th-day of June, 1956.

'Donald A. McDonald [signed]

Judge'

July 3, 1956, in response to an application therefor, the chief justice ordered that a writ of certiorari issue, directing respondent judge to return to this court a full and complete transcript of the records and proceedings, with the intent that the same be heard and reviewed.

The matter was heard by this court on the 14th day of September, 1956. At the outset, we are met with respondent's motion to quash the writ, on the ground that the petition therefor is not an affidavit, as required by statute. RCW 7.16.050 provides that the application for writ of certiorari 'must be made on affidavit by the party beneficially interested. * * *'

No cases are cited by the parties directly deciding this issue, nor does our search reveal any. We have held, however, that a verified complaint is a sufficient compliance with a statute providing that a writ of mandamus must be issued upon affidavit on the application of the party beneficially interested. State ex rel. Adams v. Irwin, 74 Wash. 589, 134 P. 484, 135 P. 472. A verified complaint is equivalent to an affidavit. Luellen v. City of Aberdeen, 20 Wash.2d 594, 148 P.2d 849. We have treated an application for a writ of mandate as an application for a writ of certiorari. State ex rel. Crockett v. Sutton, 159 Wash. 307, 293 P. 469. The motion to quash is denied.

Ordinarily, the remedy of relator would be by appeal, rather than by certiorari. However, because of his peculiar situation herein, a successful appeal would not grant him proper or adequate relief

RCW 11.20.020 provides:

'Applications for the probate of a will and for letters testamentary, or either, may be made to the judge of the court having jurisdiction and the court may immediately hear the proofs and either probate or reject such will as the testimony may justify. Upon such hearing the court shall make and cause to be entered a formal order, either establishing and probating such will, or refusing to establish and probate it, and such order shall be conclusive as against all the world except in the event of a contest of the will as hereinafter provided. All testimony in support of the will shall be reduced to writing, signed by the witnesses, and certified by the judge of the court.'

RCW 11.24.010 provides:

'If any person interested in any will appears within six months immediately following the probate or rejection thereof, and by petition to the superior court having jurisdiction contest the validity of the will, or appears to have a will proven which has been rejected, he shall file a petition containing his objections and exceptions to the will, or to the rejection thereof. Issue shall be made up, tried, and determined respecting the competency of the deceased to make a last will and testament, or respecting the execution by a deceased of such last will and testament under restraint or undue influence or fraudulent representations, or for any other cause affecting the validity of such will.

'If no person appears within the time aforesaid, the probate or rejection of the will shall be binding and final as to all the world: * * *.'

Respondent contends that under our probate code, a will is first submitted for probate and is either admitted or rejected upon an ex parte hearing without notice, and that a separate, distinct procedure has been provided for will contests.

In In re Larson's Estate, 187 Wash. 183, 60 P.2d 19, 21, after quoting the above statutes, we said:

'Accordingly, the procedure in these cases is: First, probate of the will in common form, or an ex parte proceeding in rem, wherein no one interested is before the court except the proponent of the will and his witnesses; second, a contest filed by any interested person within six months after the probate or rejection of the will, the contest being by petition upon which issues shall be made up, tried, and determined; and, third, upon the filing of a petition in contest, a citation shall issue requiring executors or administrators with the will annexed, all legatees, minors, or personal representatives of any of them, to appear before the court, at a time specified, to show cause why the petition in contest should not be granted. That is, there is to be no contest about admitting or rejecting the will unless some interested party, within six months after the ex parte hearing, in the first instance, files a written petition in contest upon which all parties interested are brought in so that there shall be only one contest.

'If...

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13 cases
  • In re Estate of Black
    • United States
    • Washington Supreme Court
    • December 9, 2004
    ... ... Seattle-First Nat'l Bank v. Kawachi, 91 Wash.2d 223, 225-26, 588 P.2d 725 (1978) ... Res ... to probate a will may properly become an adversary proceeding." Gordon v. Seattle-First Nat'l Bank, 49 Wash.2d 728, 736, 306 P.2d 739 (1957) ... ...
  • Crosby v. County of Spokane
    • United States
    • Washington Supreme Court
    • February 4, 1999
    ... ... RCW 9A.72.085; Gordon v. Seattle-First Nat'l Bank, 49 Wash.2d 728, 731, 306 P.2d 739 (1957) ... ...
  • In re Estate of Black, 20622-0-III.
    • United States
    • Washington Court of Appeals
    • April 15, 2003
    ... ... Gordon v. Seattle-First Nat'l Bank, 49 Wash.2d 728, 735, 306 P.2d 739 (1957) ... ...
  • Griffith v. City of Bellevue
    • United States
    • Washington Supreme Court
    • September 12, 1996
    ... ... 2 A verification may be substituted for an affidavit. Gordon v. Seattle-First Nat'l Bank, 49 Wash.2d 728, 731, 306 P.2d 739 (1957); ... ...
  • Request a trial to view additional results

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