Gostina v. Whitham

• Decision Date: 13 June 1928
• Docket Number: 21081.
• Citation: 148 Wash. 72,268 P. 132
• Court: Washington Supreme Court
• Parties: GOSTINA et al. v. WHITHAM.

268 P. 132

148 Wash. 72

GOSTINA et al. v. WHITHAM.

No. 21081.

Supreme Court of Washington

June 13, 1928

Department 2.

Appeal from Superior Court, King County; James B. Kinne, Judge.

Proceeding by Carrie Gostina and another for the allowance of a claim opposed by John W. Whitham, as executor of the estate of John Krueger, deceased. Judgment for plaintiffs, and defendant appeals. Affirmed.

John W Whitham, of Seattle, for appellant.

R. J Meakim, of Seattle, for respondents.

ASKREN J.

This is an appeal from a judgment of the court in favor of the plaintiff on a claim presented to and rejected by the administrator of the estate of John Krueger, deceased. For many years prior to his death John Krueger made his home with the respondents. The condition of his health was such as to require a great deal of care and nursing. All of this was supplied by respondents, and no payment was ever made therefor. In June, 1924, he delivered to respondents an order in writing as follows:

'The National Bank of Commerce of Seattle: Pay to the order of Carrie Gostina $_____ after death 10,000.00 dollars.

John Krueger.'

Krueger spent most of his time at respondents' home until a few months prior to his death, when for some reason he spent part of his time with another neighbor. In 1925 he made a will bequeathing his estate to brothers and sisters. The respondents presented their claim based on the writing just set out, which was refused, and this action instituted to enforce the payment, with a favorable result.

It is contended that the trial court erred in refusing to strike the complaint for failure of the respondents to answer certain interrogatories propounded to them. If it be admitted that the interrogatories were proper and that there was a long delay before they were answered still it appears that answer to them was filed the day before the case was set for trial. An offer of continuance was made and refused by appellants. We have heretofore held that the striking of a complaint for failure to answer interrogatories is such a harsh remedy that it will not be resorted to except upon a clear showing of prejudice to the opposing party. Haas v Washington Water Power Co., 93 Wash. 291, 160 P. 954; Kelly-Springfield Tire Co. v. Lotta Miles Tire Co., 139 Wash. 159, 245 P. 921.

There is nothing in the record to indicate a prejudice to the appellants, and, when a continuance was offered and refused, we think appellants can hardly say now that the failure to timely answer the questions was such a violation of the appellants' rights as to require the court to strike the complaint.

Appellants' most serious contention is that the instrument sued upon can be construed as nothing more than an attempt to make a testamentary disposition of a certain amount of the estate of the decedent, and therefore it is void as not being in proper form as a will, and in any event was revoked by the will of 1925, which was executed in due form a year later. But this instrument sued upon is not a testamentary disposition of property.

An instrument founded upon a consideration whereby one agrees to pay another a definite sum does not partake of a testamentary character...