In re Adams' Estate

• Decision Date: 13 May 1922
• Docket Number: 16665.
• Citation: 206 P. 947,120 Wash. 189
• Court: Washington Supreme Court
• Parties: In re ADAMS' ESTATE. v. ST. SURE et al. SMITH et al.

206 P. 947

120 Wash. 189

In re ADAMS' ESTATE.

SMITH et al. v. ST. SURE et al.

No. 16665.

Supreme Court of Washington

May 13, 1922

Department 1.

Appeal from Superior Court, Whitman County; Chester F. Miller Judge.

In the matter of the estate of David W. Adams, deceased. Proceedings by Barbara A. Smith and others against Frank St. Sure, as executor and trustee of the last will and testament of David W. Adams, deceased, and others, to contest the probate of the will. From decree upholding the will, the contestants appeal. Affirmed.

Pickrell & Stotler, W. E. McCroskey, and S. R. Clegg, all of Colfax for appellants.

U. L Ettinger, of Colfax, and Allen, Winston & Allen, of Spokane, for respondents.

FULLERTON, J.

David W. Adams died in Whitman county, Wash., on August 16, 1920 leaving an estate therein consisting of real and personal property. He left a will, in which he named Frank St. Sure as executor. The will was in due time presented for and admitted to probate, and St. Sure confirmed as executor. Mr. Adams left as his heirs at law a brother and certain nephews and nieces, and these, subsequent to the probate of the will, instituted the proceedings now before us in contest thereof. Issue was joined on the petition of the contestants by the executor and the beneficiaries under the will, and the trial resulted in a decree upholding the will. From this decree the contestants appeal.

Mr. Adams at the time of his death was 73 years of age. He was a bachelor. For a number of years he had been in bad health, suffering from some form of heart trouble. The affliction, however, did not prevent him from looking after and managing his somewhat considerable estate, which consisted principally of farm lands. For the few years preceding his death he suffered from an affliction of the prostate gland, which was later diagnosed as cancer. As the disease spread he became more and more incapacitated, and intrusted the details of his business largely to others, although we do not find that he ever prior to his last sickness surrendered its general control. About the time the last of his afflictions began to trouble him seriously, he purchased a residence in the city of Colfax to which he moved from his farm. As time went on Mr. Adams became gradually weaker and much emaciated. The cancer spread to the bladder and rectum, causing him much pain, and more or less hemorrhage through the urinary organs. He finally reached a condition where he was confined almost entirely to his bed. On the evening of July 12, 1920, he was taken to a hospital in the city of Colfax, and on the afternoon of the next day the will here in question was executed.

It is here proper to point out that the will is in no manner unnatural or irrational. The value of his estate as a whole is not shown in the evidence. It is said in one of the briefs of counsel, and not questioned, that its value approximates $100,000. Of this property he gave to a Mrs. Asbury, his cousin, his city property, and a quarter section of his land which was appraised at $18,100. He gave a quarter section of his land to charity, leaving it to his executor to select the particular quarter section which should be so applied. This bequest approximated $18,000 in value. The remainder of his estate, some $60,000 in value, he gave to his brother and to his living nephews and nieces, share and share alike. Mrs. Asbury had a special claim upon the bounty of the testator. She had for many years been a member of his household. She had cared for his aged mother during her declining years, and had continued with him as his housekeeper after his mother's death. The quarter section of land given her was land which had been bequeathed to him in his mother's will. Nor was the gift to her a new thought on his part. In a will executed in 1916, prior to his mother's death, he gave to her a quarter section of land, subject to a life estate therein to his mother. Nor was the gift to charity a new idea with him. For a number of years prior to his death he had spoken of endowing a ward in a hospital where poor people could be treated without, as he considered it, excessive cost. Nor did any of his relations have any especial claim upon his bounty. None of them were residents of his household, and, while he had for the greater number of them the regard which normal people usually have for their worthy relatives, none of them had performed for him any special service which ordinarily appeals to gratitude.

On the appeal the appellants make three principal contentions: (1) That the will was not executed with the formalities required by statute; (2) that the will was executed under undue influence; and (3) that the testator had not sufficient mental or physical capacity to execute a will. These contentions we will notice in their order.

On the question of the formality of the execution of the will it is contended: First, that the will was not signed by the testator but by another, and that this other did not sign his name to the will as a witness nor state that he subscribed the testator's name thereto at his request; and, second, that one of the witnesses to the will was not requested by the testator to sign it as a witness. On the first branch of the objection, the evidence shows that Mr. Adams, at the time of the execution of the will, was very weak physically; that just prior to the signing he was lying in a bed, and to enable him to sign he was raised up and supported by a nurse and by the attending physician; the physician also supported the arm in which he held the pen. All of the witnesses, however, testify that he himself while in that position wrote his name as it appears on the will without further aid or assistance from any one. This is a signing by the testator, and not the signing of his name by another. The courts generally hold that a signature is not rendered invalid by the fact that another guided the hand of the testator when he signed the will; that such an act is the testator's own, performed with the assistance of another, and not the act of another done under the direction of the testator. 40 Cyc. 1104. If guiding the hand of the testator does not take from the signature its character as the testator's own, manifestly the assistance here given will not have a contrary effect. There was therefore no need of the special form of attestation prescribed by the statute, and the general attestation was sufficient.

On the second branch of the contention, the evidence shows that the persons present in the room when the draft of the will was completed were the attorney who prepared the draft, and the attending physician who was named as executor of the will. When the attorney informed the testator that an additional witness would be required, he directed him to call a nurse. A nurse was called, and the formal execution of the will proceeded with; the nurse signing as one of the witnesses. The nurse testified that she was not requested by the testator to sign the will, and it is on her testimony that the claim of informality is founded. But as we said in Points v. Nier, 91 Wash. 20, 157 P. 44, Ann. Cas. 1918A. 1046, the request that witnesses should attest and subscribe a will may be inferred from the acts and conduct of the testator as well as from his express words; that the law regards substance rather than literal form in such matters and that it was not essential that the testator should expressly request...