In re Auritt's Estate

• Citation: 175 Wash. 303,27 P.2d 713
• Decision Date: 07 December 1933
• Docket Number: 24661.
• Court: United States State Supreme Court of Washington
• Parties: In re AURITT'S ESTATE.

27 P.2d 713

175 Wash. 303

In re AURITT'S ESTATE.

No. 24661.

Supreme Court of Washington

December 7, 1933

Department 1.

Appeal from Superior Court, Spokane County; Joseph B. Lindsley Judge.

Petition by Gertrude Sillman Wolfe and another to establish and admit to probate a lost will, executed by Rosa Auritt, deceased opposed by George Sillman. From an order establishing the will and admitting it to probate, contestant appeals.

Affirmed.

Hamblen Gilbert & Brooke, of Spokane, for appellant.

Tustin & Chandler, of Spokane, for respondents.

STEINERT, Justice.

This is a proceeding to establish and admit to probate a lost will executed by Rosa Auritt, now deceased. The petitioners in the proceedings below were Gertrude Sillman Wolfe and William Sillman, Jr., niece and nephew, respectively, of the deceased. Resistance to the will was offered by George Sillman, brother of the deceased. Issues having been joined, a hearing was had, following which the court entered an order establishing the will and admitting it to probate. From that order, George Sillman has appealed. The petitioners above named are the respondents herein.

For several years prior to her death, Rosa Auritt, a widow, had made her home in Spokane with her brother, William Sillman, Sr., the father of respondents herein. It appears that Mrs. Auritt and her brother William owned, or were interested in, a farm near Prosser, and a day or two prior to May 23, 1932, had driven from Spokane to Prosser on some business connected with the farm. In their automobile they carried a quantity of dynamite, presumably to be used in clearing operations upon the land. While they were driving upon the highway near the farm at about 9 o'clock in the forenoon of May 23d, the dynamite exploded, demolishing the car and instantly killing both of its occupants.

From a subsequent inquiry and investigation, it was learned that on January 27, 1931, William Sillman, Sr., had executed a will in which the respondents were made the sole devisees; by a codicil dated February 4, 1931, the sum of $3,000 was bequeathed to Rosa Auritt, payable in annual installments of $1,000, the legacy to lapse, however, in the event of Mrs. Auritt's death prior to completion of the payments. With this will we are not immediately concerned in this action; we mention it only because it indicates the affection that existed between Mr. Sillman and his sister. Through the same investigation and inquiry, it was also learned that Rosa Auritt had, on February 4, 1931, executed a will in which all of her property was bequeathed and devised to her brother, William Sillman, Sr., 'to have and to hold the same to himself and heirs, absolutely and forever.' It is this will that has given rise to this litigation. Neither of these wills has ever been found. In the proceeding below, a carbon copy of Rosa Auritt's will was identified and, over appellant's objection, was admitted in evidence.

Owing to the limited questions Before us on this appeal, it is unnecessary to cover in detail the evidence supplied by a rather voluminous record. We will confine ourselves to a statement of such further facts as are necessary to an understanding of the issues involved.

Under his first assignment of error, appellant contends that the court erred in concluding, holding, and deciding that the contents of Rosa Auritt's last will and testament had been established as required by law. The contention rests upon the provisions of Rem. Rev. Stat. § 1390, which, so far as it is applicable in this connection, reads as follows:

'* * * No will shall be allowed to be proved as a lost or destroyed will * * * unless its provisions shall be a clearly and distinctly proved by at least two witnesses. * * *'

There were three witnesses to the will: Glenn Cunningham, the attorney who drew the will, Ava Williams, a stenographer in Mr. Cunningham's office who wrote the will from shorthand notes taken at Mr. Cunningham's dictation, and Lloyd Gandy, also an attorney. Mr. Cunningham testified that just prior to the execution of the will by Mrs. Auritt, he read it to her 'verbatim,' carefully explaining its contents to her Before she signed it; that the carbon copy of the will offered and admitted as evidence in the case was an exact carbon copy of the will executed by Mrs. Auritt in his office on February 4, 1931; and that he delivered the original instrument to Mrs. Auritt after its execution, and retained the carbon copy in his possession at all times until its introduction in evidence. Miss Williams testified that she recalled the provisions of the will, and that its contents were the same as those set forth in the carbon copy. Mr. Gandy merely testified as a subscribing witness to the will.

It is appellant's contention that Mr. Cunningham's testimony amounted to nothing more than a mere identification of the carbon copy of the will, and that the proof therefore, did not meet the requirement of the statute which demands that the provisions of the will be clearly and distinctly proved by at least two witnesses. Mr. Cunningham was not only a subscribing witness, but was the very attorney that drew the will and painstakingly discussed its contents with his client. If, while on the witness stand, Mr. Cunningham had read the carbon copy aloud, line by line, or word by word, and had then stated of his own knowledge that the contents of the original were exactly the same, line for line, and word for word, there could have been no doubt that by his testimony he had related and identified the contents of the will. His testimony, as he gave it, while more condensed, was none the less direct and effectual. It was positive proof of the exact contents of the will, and it seems to us that, in the absence of the original will itself, no better proof could have been supplied. A carbon copy of a will, together with oral testimony that it is an exact copy of the original, is competent and admissible, as...