In re Bauer's Estate
| Decision Date | 19 August 1940 |
| Docket Number | 28017. |
| Citation | 5 Wn.2d 165,105 P.2d 11 |
| Court | Washington Supreme Court |
| Parties | In re BAUER'S ESTATE v. BAUER. ALBEE |
Department 2.
Proceeding in the matter of the estate of Ernest F. Bauer, deceased, by George W. Albee, a minor, by his guardian ad litem, against Ray W. Bauer, wherein plaintiff filed a motion to vacate a decree admitting an alleged will of deceased to probate. From a judgment denying the motion, plaintiff appeals.
Reversed.
Appeal from Superior Court, King County; John A. Frater, judge.
Allen Carey & Roney, of Seattle, for appellant.
Croson Johnson & Wheelon and Robert O. Beresford, all of Seattle for respondent.
Ernest F. Bauer and Edna Albee Bauer intermarried June 10, 1919. Their son, George W., was born during the month of September, 1920. June 26, 1926, by decree entered by the superior court for King county, Mr. and Mrs. Bauer were divorced. September 2, 1927, George W., the minor child of the parties, with the written consent of both of his parents, was legally adopted by his maternal grandmother, and his name changed to George W. Albee.
Ernest F. Bauer, who had for some years prior thereto lived in Alaska, returned to Seattle during the month of October, 1938, and resided in Seattle until his death, which occurred December 3, 1938. Mr. Bauer left a paper writing, bearing date August 16, 1937, which document was, on application of Mr. Bauer's brother, Ray W. Bauer, by the superior court for King county, by decree dated December 14, 1938, admitted to probate as the last will and testament of Ernest F. Bauer.
Ray W. Bauer, to whom letters testamentary were regularly issued, published notice to creditors, filed his inventory of the property of the estate, and after the expiration of six months, filed his final account as executor and petition for distribution. The executor tendered to George W. Albee, the son of the deceased, one dollar, upon the theory that the son was entitled to receive that amount under his father's will. The tender was refused, and the minor, through his guardian ad litem, appeared in the probate proceeding and moved to set aside the probate of the alleged will, upon the ground that the same had been improvidently and fraudulently admitted to probate. The minor also filed an answer to the final account and petition for distribution, alleging that he was the son and only heir of the decedent; that he was not named or provided for in the alleged will; that as to him his father died intestate; and that he, as his father's only child, was entitled to have the residue of the estate remaining in the hands of the executor distributed to him. The executor contends that his brothers, his sister, and George W. Albee should receive one dollar each, and that he should receive the balance of the estate.
After a hearing, the trial court denied the minor's motion to vacate the decree admitting the alleged will to probate, ruled that the deceased, as to his son, died testate, and approved the executor's final account and entered a decree of distribution, as prayed for in the executor's petition, distributing one dollar to the son of decedent, and awarding the residue of the property of the estate to the executor, Ray W. Bauer, holding that he was entitled to receive the same under the last will and testament of the decedent.
From the order and decree entered by the trial court, the minor, by his guardian ad litem, has appealed, assigning error upon the refusal of the trial court to vacate the decree admitting the will to probate, and upon that portion of the decree refusing to distribute the estate to appellant and awarding the same to the deceased's brother, Ray W. Bauer.
December 14, 1938, Ray W. Bauer filed his petition for probate of will, submitting therewith a document which he alleged was the last will and testament of his late brother, Ernest F. Bauer. A facsimile of this document follows:
(Image Omitted)
After alleging the death of Mr. Bauer in Seattle, King county, Washington, and that he left estate therein of the probable value of five thousand dollars, the petition sets forth that during the month of August, 1937, the decedent was in the employ of the United States government, stationed at Nome, Alaska, and that on August 16th, he executed his last will and testament; that at that time the laws of the territory of Alaska provided that 'Olographic wills, with or without attestation, shall be admitted to probate the same as other wills, and be proved in the same manner as other private writings,' Comp.Laws of Alaska 1933, § 4624; and that the document was a valid will under the laws of Alaska. Paragraph 2 of the petition alleges 'that said deceased left surviving the following as his only heirs, devisees and legatees,' then naming the three brothers and one sister mentioned in the so-called will.
On the day the petition was filed, a decree was entered admitting the document to probate as the last will and testament of Ernest F. Bauer. This decree, inter alia, states: 'That said will was duly executed as an olographic will without attestation in accordance with section 4624 of the Compiled Rules of Alaska, 1933.'
A minute entry, under date December 14, 1938, made by the clerk of the probate department of the superior court, entitled in the estate of Ernest F. Bauer, deceased, reads as follows:
Rem.Rev.Stat. § 1380, referring to the probate of wills, contains the following: 'All testimony in support of the will shall be reduced to writing, signed by the witnesses, and certified by the judge of the court.'
No such certificate was filed, and the record discloses nothing concerning the evidence which was introduced in support of the alleged will.
Concerning the question of whether the document is a holographic will, the following authorities indicate that it is not.
In 28 R.C.L. 161, § 116, is found the following:
The following texts are to the same effect. Thompson on Wills, 2d Ed., chap. 3, § 29; 1 Page on Wills, §§ 363, 367. It seems to be the general rule that a holographic will must be entirely in the handwriting of the testator, and cannot be written in typewriting, nor can words which are part of the dispositive portions be inserted by the use of a rubber stamp. It is also stated that a will which is written in part on a printed form is not a holograph, if the written portions are not complete in themselves. 1 Schouler on Wills, 6th Ed., §§ 9, 427-429; 68 C.J. 719, §§ 402, 403. It has been held that to constitute a valid holographic will, every word must be in the handwriting of the testator. In re Thorn's Estate, 183 Cal. 512, 192 P. 19.
Appellant contends that the document which the court admitted as a holographic will shows beyond question on its face that it cannot on any theory be classed as such, and that the decree purporting to admit the writing to probate as a will is a mere nullity, and should be vacated as such. Whether or not the document can, on any theory, be said to be a holographic will, or any will, may well be doubted, but we find it unnecessary to determine this question, in view of our opinion on the questions raised by appellant under his second assignment of error. This also renders it unnecessary to discuss respondent's contention that appellant's attack on the decree admitting the document to probate as a will is in law a will contest, and was not instituted within the time limited by law for commencement of a will contest.
We shall now consider the proposition advanced by appellant that he is not 'named or provided for' in the document which was admitted to probate as his father's will, and which we shall hereinafter refer to as the will, and that he therefore, as his father's sole heir, should receive, as distributee, the entire residue of his father's estate.
In the first place, it should be noted that respondent admits that appellant is the son, and the only child, of Ernest F. Bauer deceased, and that, notwithstanding appellant's adoption by his maternal...
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