Harris v. Harris
| Decision Date | 10 January 1895 |
| Citation | 10 Wash. 555,39 P. 148 |
| Parties | HARRIS v. HARRIS ET AL.[1] |
| Court | Washington Supreme Court |
Appeal from superior court, Whatcom county; James H. Detrick, Judge pro tem.
Action by Benjamin F. Harris against Edwin A. Harris and others. From a judgment for plaintiff, defendants appeal. Reversed.
Kerr & McCord, for appellants.
Bruce Brown & Cleveland, for respondent.
This was a proceeding instituted by the respondent, in the superior court of Whatcom county, to establish and probate a lost will. The material allegations of the petition, briefly stated, are that Daniel J. Harris died at Los Angeles, in the state of California, on or about August 19, 1890, leaving an estate in the city of Fairhaven, Wash., consisting of certain town lots, which are specifically described; that "said deceased, at the time of his death, left a will, bearing date the 6th day of April, 1871, which your petitioner alleges to be the last will and testament of said deceased"; that said will is in writing, and was signed by the deceased, and attested by two witnesses, who, at his request, subscribed their names to the said will in the presence of said testator and of each other; that the original will has been lost, and cannot be found, and that a copy thereof is annexed to the petition, and presented in lieu of said original will; that the petitioner, Benjamin F. Harris, is named in said instrument as the sole devisee under said will; and that the property described in the petition as that left by the said testator at the time of his death was a part of donation claim No. 420, described in said will. The next of kin and heirs at law of the deceased interposed a demurrer to the petition, on the ground that the same did not state facts sufficient to constitute a cause of action. This demurrer was overruled by the court, and exception taken and allowed. An answer was thereupon filed, denying each and every allegation of the petition, except that the parties named therein are the next of kin and heirs of the said Daniel J. Harris, and that the property belonging to the said testator is properly set forth and described in the petition. The cause was tried by a special judge, and the court, after hearing the testimony, filed its findings of fact and conclusions of law, and entered a decree establishing the will and admitting it to probate. From this judgment the contestants appealed to this court.
Our statute (Code Proc. § 879) provides that
The appellants' first contention is that the court erred in overruling their demurrer to the petition. The point here made is that it does not allege that the will was in existence at the time of the death of the testator, or that it was fraudulently destroyed in his lifetime, and that therefore, no proof was admissible to sustain the finding of the court that the will was in existence at the testator's death. A fraudulent destruction of the alleged will is not claimed by the respondent, and it was therefore not necessary to allege such destruction. But it was necessary, in order to establish the instrument as a lost will, to aver in the petition that it was in existence at the time of the death of the testator (Estate of Kidder, 57 Cal. 282); and this, we think, the petitioner substantially did when he alleged that "said deceased, at the time of his death, left a will which your petitioner alleges to be the last will and testament of said deceased." Saying that the deceased "left a will" when he died was equivalent to saying that the will was in existence at that time. The objection to the sufficiency of the petition is therefore not well founded.
But it is insisted by appellants that, even though the petition may be deemed sufficient, the judgment must be reversed, for the reasons (1) that the proposed will was not shown to have been executed in compliance with the statute; (2) that, if properly executed, it was not proved that the will was in existence at the time of the death of the testator and (3) that its provisions were not clearly and distinctly proved by at least two credible witnesses, as required by law. The statute concerning the execution of wills (1 Gen. St. § 1459) declares that "every will shall be in writing, signed by the testator or testatrix, or by some other person under his or her direction in his presence, and shall be attested by two or more competent witnesses, subscribing their names to the will in the presence of the testator." As to how wills shall be proved under circumstances like those in the present case, the statutory provision is as follows: "When one of the witnesses to such will shall be examined, and the other witnesses are dead, *** then such proof shall be taken of the handwriting of the testator, and of the witnesses dead, *** and of such other circumstances as would be sufficient to prove such will." Code Proc. § 865. It seems reasonably certain from the evidence in the record that Daniel J. Harris made a will on or about the time alleged in the petition, and that it was in writing, and was signed by him, and attested by Henry Roeder and J. O. Turner, who subscribed their names to the will in the presence of said testator, and at his request. The witness Turner died prior to the time of the presentation of the will for probate, but Mr. Roeder testified that Harris requested him and Turner to witness an instrument, which he declared was a will; that the transaction occurred at the courthouse, in the office of Turner, who was then county auditor and clerk of the probate court; that he saw Harris sign the instrument;...
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