Higgins v. Nethery
| Decision Date | 23 October 1902 |
| Citation | 70 P. 489,30 Wash. 239 |
| Parties | HIGGINS et al. v. NETHERY. |
| Court | Washington Supreme Court |
Appeal from superior court, Chehalis county; Mason Irwin, Judge.
Action by Nellie Higgins and others against Mary L. Nethery to contest the will of D. W. Organ, deceased. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.
W. H. Abel and A. M. Abel, for appellants.
J. A Hutcheson, for respondent.
On January 5, 1899, D. W. Organ died in Chehalis county, leaving an estate therein. Prior to his death, and on May 15, 1893 deceased made a will, by which he left one half of his property to one daughter and the other half to his remaining children, share and share alike. On petition of the executrix named therein, the will was admitted to probate by the superior court of Chehalis county on March 13, 1899. This action was begun by the appellants on February 15, 1901, to set aside the will upon the grounds that the deceased did not make it; that the same is void, because the testator at the time the will was made was not of sound mind, and that undue influence was exercised by the respondent upon the testator prior to the making of the will. On the trial the court found the facts against the contestants, and dismissed the action. From this judgment appeal is prosecuted.
Five errors are assigned, substantially as follows: (1) Error in imposing the burden of proof upon the contestants; (2) error in the admission of evidence of nonexpert witnesses (3) error in the findings of fact; (4) error in the conclusions of law; and (5) error in dismissing the cause. When the cause was called for trial, appellants (plaintiffs below) requested the court to impose the burden of proof upon defendant because of certain irregularities which they claimed appeared on the face of the proceedings by which the will in question was admitted to probate, and which it is claimed rendered the proceedings void. The court denied this request, and the ruling is alleged as error. It is claimed that the superior court had no jurisdiction to admit the will to probate, because the petition for the probate of the will failed to state the residence of the deceased, and because residence of the deceased in Chehalis county at the time of his death was necessary to give that court jurisdiction. The petition shows that the deceased died in Montesano, in Chehalis county Wash., and that said deceased left a will, and an estate consisting of real property within said Chehalis county. The court, when the will was admitted to probate, found that deceased at the time of his death was a resident of said county and state. The statute provides, at section 6087, 2 Ballinger's Ann. Codes & St.: 'Wills shall be proved and letters testamentary or of administration shall be granted:--(1) In the county of which deceased was a resident or had his place of abode at the time of his death; (2) in the county in which he may have died, leaving estate therein, and not being a resident of the state; (3) in the county in which any part of his estate may be entered, he having died out of the state, and not having been a resident thereof at the time of his death.' The residence of deceased was not a jurisdictional fact under this statute. The superior court had jurisdiction to probate the will whether the deceased resided in Chehalis county or not, provided an estate was left in that county. It is not claimed that the deceased left no estate in Chehalis county.
It is next objected that the execution of the will was not proved at the time it was admitted to probate. The name of the testator was not signed by himself, but was signed, at his request, by another. The statute in reference to the execution of wills (section 4595, 1 Ballinger's Ann. Codes & St.) requires that a will shall be signed by the testator, or by some other person under his direction, in his presence. The evidence of the subscribing witnesses to the will was reduced to writing at the time of the hearing for probate, and is substantially as follows: That they...
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Table of Cases
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